National Road Traffic Amendment Bill [B39-2008]: Deliberations & National Land Transport Bill: Retreat Taxi Association Submission

Meeting report

The Chairperson noted that due to the fact that there was no quorum the two Bills to be discussed could not be finalised that day

National Road Traffic Amendment Bill (NRTAB): Continuation of deliberations
Mr John Motsatsing, Acting Chief Director: Road Transport Regulation, Transport Regulation and Accident and Incident Investigation Branch, Department of Transport, said that the document now prepared by the Department of Transport (DoT) that was being presented to the Members was the result of proposals made the previous week. He would indicate those clauses in which changes had been made.

Clause 7
Mr Motsasing pointed out that on page 5, at line 5, of the National Road Traffic Amendment Bill (NRTAB), the number “(1)” would be inserted. On line 6 a new subsection (1) would be inserted. This would make provision for a person to take a learner’s or driver’s test anywhere within that person’s province of residence.

The Chairperson put forward the example of a Member of Parliament, who was resident in the Western Cape and his own home province at different times of the year. He knew that the amendment was an effort to curb fraud, but asked how one’s province of residence could be defined in such a case.

Mr Motsatsing gave an example of someone commuting between the North West and Mpumalanga. The Member of the Executive Council (MEC) might prescribe certain districts in which candidates had to go for tests. This clause could then be reworded to “any test centre in that district”.

The Chairperson said that proof of residence would have to be provided. This still did not cater for a person who could be resident in many provinces. Government should be rooting out corruption rather than finding ways to minimise it. In some cases the closest test centre for a person might well be in another province.

Mr S Farrow (DA) said that there were problems within some provinces. A friend of his was resident in Muizenberg in Cape Town. It was a major exercise for this person to get to a test centre. His vehicle was registered in that district, yet the test could not be done in the city. New systems like eNatis should be making life easier, but this did not seem to be the case.

Mr Motsatsing said that the previous Act had made provision for a person to take the test in his or her municipality of residence. That person could now go anywhere in the province.

The Chairperson said that he was not personally in favour of the amendment as proposed. There should be free access to any test centre in the country. The DoT should be able to pick up any bizarre patterns which might be occurring at a particular centre. This would be a sign of corruption.

Mr L Mashile (ANC) said that if there were systematic problems, they could be addressed in regulations. It the solutions were fixed in legislation it would seem that the provincial boundaries were being anchored and confirmed. This was reflecting the fragmentation of the country. It was contradicting the concept of a unitary state.

Mr Farrow said that a situation was being created where provinces could have different criteria for tests. There should be a national standard which had to be free of corruption. He thought that this provision would be more divisive. There was a long waiting list at many test centres, and this could be alleviated if people were able to go to other test centres.

Mr E Lucas (IFP) appreciated that the DoT was trying to stop fraud but this attempt would not work. There were too many loopholes.

The Chairperson said that introducing this element of the legislation would impose another administrative burden on the testing centres. He asked how a youngster resident in an informal settlement could provide proof of residence. The Committee did not agree to this Clause.

Clause 10
Mr Motsatsing said the original Clause 10 had been rejected. A new Clause had been drafted which would amend Section 21 of Act 93 of 1996 (the principal Act). The heading would read “Directions to applicant for application for learner’s or driving licence”. The wording of the clause was being simplified. The context was that if an applicant should fail a test due to some unreasonable action by an examiner the applicant could appeal. The Chief Executive Officer could then order a new test.

The Chairperson said that some wording was needed to indicate that this was a form of appeal.

Mr Motsatsing confirmed that this clause made provision for a person who felt aggrieved to lodge an appeal.

The Chairperson said that the context was unclear. It had not been contextualised in this way in the principal Act.

Mr Mashile said that the heading could be clearer. As it was presented to the Committee it could refer to a new applicant.

Clause 20
Mr Motsatsing said that on page 10 line 43 a new paragraph (zF) would be included referring to vehicles classified as emergency medical response vehicles. The DoT had consulted with the Department of Health. A new subparagraph (d)(2B) would be introduced which required that regulations in this regard would be made in consultation with the Minister of Health.

The Chairperson remarked that the DoT was now admitting that it was not the best authority on this matter.

The Chairperson asked if there was a definition of an emergency medical response vehicle.

Mr Farrow said that exempted status was described in Section 16 of the principal Act. This made provision for vehicles identified as emergency response vehicles to ignore speed limits and road signs when necessary. He asked how this Section would be affected.

Mr Motsatsing said that the exemption applied to speed limits and road signs.

The Chairperson said this was addressed in Section 16. It spoke on how the regulations would be developed.

Mr Farrow said there was a question over ministerial escorts. He asked if the regulation applied only to those vehicles displaying blue lights or to the whole convoy.

Mr Motsatsing said that the exemption only applied to South African Police Services (SAPS) vehicles. Other vehicles in the convoy were not exempt. There were specific regulations that applied to the VIP protection vehicles used for Members of Parliament.

The Chairperson assured the meeting that VIP arrangements were only for some politicians. The exemption would apply in these cases. The detail would be contained in the regulations. There had been a legitimate public outcry over the behaviour of some of these drivers. It might be that the regulations were not clear enough.

Mr Mashile said that a convoy was often led by a vehicle with a blue light, and a similar vehicle brought up the rear. This did give a certain protection. He needed clarification on what the situation was when there was no such vehicle at the end of the convoy. Members needed to discuss this issue at some stage.

The Chairperson agreed that the Committee needed to have a look at this. However, he did not want to make the formalisation of the Bill dependent on the regulations. Once the rush of legislation was concluded Members could find some time for discussion over the next few weeks. They also had to think about the status of a private vehicle that was being used in an emergency situation and was being escorted by an exempted vehicle - for example a woman in labour being rushed to hospital with a police escort. It also happened at times that if there was a major accident private vehicles might be used to help transport the injured. This might be an issue during the football World Cup in 2010. The amendments must not be impeded.

Long Title
Mr Motsatsing said that the reference to the Minister in line 14 would be removed.

Mr Mashile said this line was about fees. It was also a question of boundaries. Different fees for services were levied in the provinces. This encouraged movement across provincial lines to make use of road traffic services in other provinces to save on costs. He felt there should be a movement towards standard fees throughout the country.

The Chairperson said that some power was being taken away from the MECs. He felt that this was correct. He wanted to see standard fees and procedures. The MECs provided a service. Fees should be left to the provinces. If they were overcharging they would lose out on their market share. They would struggle to balance their budgets if they undercharged. An example was the vehicle licence fees, which were much more expensive in the Western Cape than in the Eastern Cape. It was noted that parastatal companies often registered their vehicles in cheaper provinces.

Mr Mashile said that the different fee structure could mean that a station in one province did not receive any applications while testing centres in another province were overcrowded. Some form of guidance had to be provided. The licence fee was standard, but other fees varied.

Mr Farrow referred to Clause 23 regarding vehicle loading. The Minister had a responsibility in this regard. There was a conflict. He asked if this was the reason for the Minister being named in the relevant phrase in the long title. Provinces had different ordinances in this regard. It was the same for the determination of vehicle loads, where there was a variation in tolerances. The Minister had indicated that this was a problem. For passenger vehicles the number of passengers was used to determine the maximum permissible loading. This was based on the assumption of an average weight of 68 kg per person, which was not the case in practice.

The Chairman said that the principal Act gave the power to determine fees to the MEC.

Mr Motsatsing said that there was provision for an MEC to grant an exemption. The Minister could also exempt a vehicle from the legal requirements, but could not set a fee for this. An operator was active within a province; therefore the MEC could determine the fee for that operator.

The Chairperson asked if the DoT was sure that transport operators were only active within a particular province.

Mr Motsatsing said that operators of abnormal load vehicles needed to approach the MEC. National Treasury had a problem with national departments levying fees. The distribution of such fees back to provinces was complicated, and it would have to be determined what share should be returned to the province in question. Accounts for overloading fees would have to be introduced. There would need to be one for each province and a tenth fund for the national department. This provision had therefore being withdrawn from the Bill and the status quo would be maintained.

The Chairperson said that the issue over accounts was a different one to the determination of fees. The Minister should set a national standard. He agreed that implementation should be at provincial level. There was a question over who set the fee. There were some concerns with the current MECs.

Mr Farrow said that on the one hand the Minister would be setting the fees. He asked if this would conflict with the proposed change to the long title. The Minister would determine the standard but the fees would remain a provincial matter.

The Chairperson said that market forces would determine where operators chose to do their business.

Mr Motsatsing said that the question of standard fees would only be resolved once functions had been transferred to the Road Traffic Management Committee (RTMC). This could only happen when the MECs were to relinquish their authority. Their powers were vested in the Constitution and this was the reason for the establishment of the RTMC.

The Chairperson said that the Committee accepted the change to the long title.

Mr Motsatsing said that this could be changed by a resolution made by the RTMC stakeholders.

Mr Bongani Jonas written submission on conversion of licences: Discussion
The Chairperson said that Mr Bongani Jonas, an official of the City of Cape Town, had made a brief written submission to the Committee on the NRTAB. Mr Jonas had written that the government had converted driver’s licences obtained in Transkei, Bophuthatswana, Ciskei and Venda. It was an administrative process. However, those members of non-statutory forces who had been awarded driving licences in various countries overseas did not enjoy the same concession. In other aspects such as pensions and rank the service of those non-statutory force members had indeed been recognised. It was a point of principle.

Mr Motsatsing said that Mr Jonas’s letter was based on the decision not to convert military licences issued by the South African National Defence Force (SANDF) to civilian licences more than the decision not to convert licences obtained in foreign countries. The problem that the DoT had with the military licences was that although they subscribed to the K53 training methods, they denied the DoT inspectorate access to testing venues. The DoT could therefore not be sure if these venues complied with the Department’s requirements. If this was addressed it would not be a problem to convert the licences.

The Chairperson said that military licences should be used when driving military vehicles and civilian licences when driving civilian vehicles. He appreciated the DoT’s current reservations about converting licences. This was not a form of discrimination.

Mr Motsatsing said that the SANDF had recently taken in a large number of recruits and was asking the DoT to do the conversion.

Mr Mashile said that they could not turn a blind eye to this issue. There was a programme to recognise prior learning. There should be some way in which a person could prove that they were competent and licensed drivers. Such people might be in a disadvantaged position.

The Chairperson said that the prior learning issued had been applied within the SANDF. It had been one of the issues during the integration of the former South African Defence Force members with non-statutory force members. The next problem was if the possession of a military licence served as an entitlement for its conversion to an equivalent civilian licence. This was not the case, and he thought that the DoT was correct with this decision. He was happy that the matter had been dealt with.

Discussion
Mr Farrow returned to the discussion of the NRTAB. He was concerned about the overloading of buses.

Mr Motsatsing said it was a difficult issue on how to prescribe on this matter. If it was regulated purely in terms of weight, then regulations would have to consider the structure of a particular vehicle. Current limitations were leading to overloading. Vehicles were designed with a maximum load in mind. It was difficult to convert this to a seating arrangement.

The Chairperson said this discussion was too detailed. The regulations would have to deal with technical matters such as this. He referred to page 10 line 43 of the Bill where a new sub clause (e)(7) had been put forward.

Mr Mashile said that there were necessary consultations prior to regulations being published.

The Chairperson said that the Chamber of Mines had raised a concern while presenting to the Committee on another matter. The Chamber felt that there was insufficient consultation with knowledgeable stakeholders. The DoT should ensure that there was such consultation, but to try to deal with this the Committee had also requested that draft regulations should be circulated to Parliament before being finalised. Parliament did not have the competence to deal with the technical issues but it would be a space for public comment if the public felt they had been left out of the consultation process.

He asked if the draft regulations could not be published in the Government Gazette for a certain period. This could afford stakeholders the chance to comment. Some aspects were critical, such as maximum permissible weights for vehicles. This would ensure that “whimsical regulations” were not implemented. He proposed that draft regulations should be submitted to Parliament six months before they were published. Some legislation had to be published twelve months before it was due to be debated. Parliament followed a transparent process and would hear the grievances of the public.

Mr Motsatsing said that the current process was determined by Section 75(6) of the principal Act. The Minister may publish draft regulations for a comment for a minimum of four weeks. This suggested Parliamentary process might prolong the established process.

The Chairperson said that this was how democracy worked.

Mr Motsatsing said that this could create an open consultation process.

Mr Hament Patel, Acting Chief Director: Integrated Transport Planning, DoT, suggested that the DoT could host a consultative workshop.

The Chairperson felt that might not be necessary.

Mr Mashile expressed that he had a problem with this suggestions. There was consultation before regulations were drafted. After this they would be on the table and open for public comment. If there was prior consultation and the draft regulations were then given to the Committees involved, this might lead to delays and members of the public could still raise issues.

Mr Farrow said that there was a reference to the Minister being required to consult with the MEC. This should be changed to require the Minister to consult with Parliament. This consultation was required prior to the regulations being published in the Gazette.

Adv Adam Masombuka, Acting Chief Director: Legislation, DoT, said that the draft regulations would be a working document for consultation. The DoT normally worked on a sixty-day basis. The DoT required a list of stakeholders, and would give them copies of the draft regulations as well as publishing them in the Gazette. This would lead to a final draft.

The Chairperson said that there was agreement on using the wording “The Minister must” publish the regulations rather than “may”. He asked if there was a need to include a Parliamentary loop, as there was the potential to do so if needed. There might be no need to hold a workshop. The public could trigger the Parliamentary process. There should be some inclusivity in the hands of the DoT. He did not want to have to hold Committee meetings on the regulations. If the public complained to the Committee then the Committee needed to create the space to hear these complaints. It would be a window of opportunity to take the matter wider.

Mr Motsatsing said perhaps a copy could be given to Parliament after the draft regulations had been published.

The Chairperson said that the drafts must be published in the Government Gazette and Parliament had to be informed at that stage.

Adv Masombuka said that this should happen before their final approval. Parliament could decide if consultation was needed within the timeframe.

The Chairperson said that the Committee could deal with the specifics, but they had to ensure that all opinions would be considered.

Mr Mashile asked for further clarity on the issues.

The Chairperson said that the draft regulations had to be published in the Gazette before they were accepted as final regulations.

Adv Masombuka said that Parliament should be informed of the consultation process.

The Chairperson said that the processes should happen at the same time. Parliament was a fall-back, and he suggested that the four week timeframe should suffice.

Mr Motsatsing was happy with this.

Mr Mashile noted that it was possible that while Parliament was considering the regulations they might be in the process of being changed by the DoT without Parliament’s knowledge.

The Chairperson asked the Members to be quite specific about what they were trying to do. Parliament’s goal should be to ensure that there was timely consultation where necessary. Not all knowledge resided in government. Therefore the Minister was required to table the regulations, hopefully after prior consultation. It would not be needed that Parliament consider the regulations where there had been proper consultation.

Mr Farrow said that the Committee could also interact with other legislation.

The Chairman said one example of this was the discussion the Committee needed to hold on the issue of the vehicles with the blue lights. The Committee was in agreement that the Minister must publish the regulations, and that provision must be made for consultation with Parliament. Parliament could advise the Minister but the Minister could ignore this advice. The intent was not to slow the process.

Mr Motsatsing said the suggested sub clause (e)(7) could then fall away and be covered by the amendment to Section 75 of the Act.

The Chairperson said that the Bill would be formalised at the Committee the next day. The DoT representatives did not have to attend, and he noted that the State Law Advisers had no problem with this proposal.

Retreat Taxi Association (RTA) Submission on the Bill
The Chairperson noted that a submission had been received. The Taxi Owners’ Association had said that the process of consultation was not complete. Legal opinions had been offered. The Committee had been asked to accept a submission after the closing date. The taxi owners were very affected by the Bill, and the Committee was therefore happy to accept this submission.

Mr Jay-Jay Maans, Representative of the Retreat Taxi Association, said that a year ago the RTA had asked questions to the Committee, to government and to the City of Cape Town, but had never received an answer. He might sound emotional, but what he was going to say would be the truth, and nothing could change his opinion. He said that there were many uneducated people in the taxi industry. The RTA had only received a copy of the NRTAB through the grapevine. The heartbeat of his earnings lay in transport.

He said that in 1995 government had called the industry together. They had sought to formalise three key issues. There had been 36 hearings throughout the country, with four being held in each province. The issues were the formalising of the taxi industry, capacity building and economic empowerment. To date nothing had transpired. Ninety percent of the formalisation that had taken place to date was due to the efforts of the industry itself. Nothing had been done by government on the other aspects. In 1996 the Cabinet and Parliament had produced the N333 recommendations.

Mr Maans said that between 70% and 80% of the taxi owners had indefinite permits. It was therefore difficult and unacceptable that government wanted to “kill” the industry by taking these permits away. Transport was the heartbeat of the nation. In 1985 Dr Boesak and Archbishop Tutu had called for sanctions against South Africa. The taxi industry had upheld the economy due to its investment in vehicles, fuel and spare parts. For more than forty years government at various levels had subsidised the bus companies, but had never subsidised the taxi industry. This was one reason why taxi owners fought over routes.

He said that the radius permit was now the operating licence, and it was based on routes. The City wanted to claim these routes. He had been in the industry for 32 years, and was saddened by the fact to discover that government wanted to take the industry away. The Bill talked about the National Public Transport Regulator (NPTR), Provincial Regulatory Entities (PREs) and Design Plan Authorities (DPAs). Taxi operators would be given contracts, according to the Bill, but there was no guarantee that this would happen. Government must give the reasons for its intention to terminate the indefinite permits.

The Chairperson said that he had read the legal opinions. The system of indefinite permits and the requirements for conversion went to the heart of the matter.

Mr B Nagel, also a Member of the RTA, said that this was not the first attempt to ruin the industry. In 1983 Piet Welgemoed had solicited support from the bus companies. Mr Welgemoed had recommended that the taxi industry be phased out over a five-year period. The Land Transport Act of 2000 was the tool that government had wanted to use. This had taken five years to reach the industry. The Western Cape government had held an indaba with the taxi owners at the River Club in Observatory, Cape Town. He had asked at this meeting if the industry would have the privilege of having five years to respond and find funding. He was sixty years old and could live without the taxi industry but he feared for the repercussions and consequences to future generations.

He said that the legislative passage of the documents had been hampered. The Bill had been well received by private transport operators. The taxi industry held 65% of the market and was a key player. Their status could not be under-emphasised. It was sad that taxi owners stood accused of many crimes such as gangsterism, which were not directly related to the industry.

Mr Nagel said that he had his feet firmly on the ground. His office was in a container at a busy intersection. The RTA was doing all that it could, with its limited resources, to implement government policy. He chaired the Western Cape Taxi Council. There were so many various training facilities and he asked what was being done for the taxi industry. There should be some form of academy. He asked if this was an unreasonable request.

He said there were two points that he wished to make. It was the intention of the Bill to get rid of the taxi industry over a seven-year period. A comprehensive strategy was being put in place. All existing indefinite permits would expire within seven years. There was provision for permit holders to apply for an extension. The TPA would not be an independent board. Integrated transport systems such as the Bus Rapid Transit (BRT) schemes would be used to replace taxis. He asked about the ownership of such schemes. The Bill said that taxi operators could become shareholders, but this was a vague reassurance. Government should make its intentions clear.

Mr Nagel said that there was a plan to extend seven-year permits but this would probably be for less than seven years. Many supported this idea. They thought that the two-year permits would be extended to seven year indefinite permits.

He said that the Bill expressed the view that there were too many operators on certain routes. He asked what formula would be applied to address this. He thought it might be a case of “first in first out”. One of the options would be to give the displaced operators different routes. The authorities would use the legislation as a stick to beat the taxi owners. The aim was to force taxi owners into becoming part of integrated transport plans.

Mr Nagel said that there was a change in the National Land Transport Bill (NLTB). There had been a provision in the previous version that if the authorities could not find alternate routes for the displaced operators then they would be compensated. This provision had disappeared. A document had been drawn up about this. The industry felt that the R50 000 scrapping allowance was a thumb-suck. With the uncertainty of the industry, it might happen that an operator could be put out of business long before he had paid off the new vehicle purchased under the taxi recapitalisation programme.

He said that the industry was suspicious of government. Since 2000 there had been many extra administrative regulations. The transport registrar and taxi recapitalisation programme were examples of this. The plan to benefit the industry against illegal operators was failing. Bus companies were still being subsidised. In the Western Cape this amounted to between R300 million and R400 million. This money could rather be used to buy buses that could then be given to operators under certain conditions.

Mr Nagel said that from the taxi industry’s side it was all give and no take. Government plans were now policies. The industry had to accept this, but they wanted to know how the taxi operators would be affected. Vague promises were not enough. They needed a share in transport companies. The province had now put out a tender for a joint fare collection system. He asked what gave government the right to collect fares on behalf of the taxi industry. The industry had formulated a detailed transformation strategy. The leadership had to agree to this and it had to be explained to the operators or else there would be resistance.

Discussion
The Chairperson said there were some misunderstandings. The Committee had to be vigilant of the actions of the Executive. They agreed that the Western Cape government was acting incorrectly in some aspects. He had two answers to the industry’s main arguments.

Firstly, he said that no one ds wanted to wipe out the taxi industry. There would be some trouble if this happened. More importantly, 65% of voters were dependent on taxis. The industry had played an heroic role despite all the problems. The taxi was the one chance for mobility for so many people.

The Chairperson’s second point was on the subsidisation of public transport. This was not a discriminatory policy. There should not be any need to subsidise public transport heavily in city areas. The need was more in the rural areas, where the passenger volume was much lower. There had to be multi-modal public transport in the cities. Perhaps the subsidies for the bus companies were excessive. The system did not make sense.

He agreed that taxi operators needed to make a profit. He asked how subsidies could be applied in an intelligent, rational and fair way. Government could not subsidise indefinite permit holders, as there were no conditions attached. There must be performance contracts in place. The public needed a monitoring system, particularly regarding the safety of vehicles. The industry was currently too unregulated. He suspected that some drivers were taking their own cut of the takings rather than handing fares over to the owners.

The Chairperson said that proper agreements were needed. Owners and government had to recognise the lifelong nature of the investments being made. It was not government that was trying to put the taxi industry out of business, but it was the fuel price that was in fact doing so. In townships in KwaZulu Natal and at Du Noon in Cape Town people were shooting at buses. The fact was that bus companies could undercut the taxi industry and were more economical. He felt that the right solution for taxis would be to concentrate more on shuttle services and in the rural areas. It would be acceptable to transport people within Khayelitsha to major transport nodes, but it was not viable to transport people into Cape Town. The taxis were not sufficiently fuel efficient to compete with buses on long routes. Reality was forcing changes but government had to ensure that taxis operators were not undermined. The presenters had talked about “our routes”, and claimed to have pioneered certain routes. Real tears had been shed in violence over operators trying to dominate certain routes. In fact the routes belonged to the people, and government had a responsibility to regulate the operators on these routes.

Mr Nagel said that it was not a question of routes but of market share.

The Chairperson said that it was the taxi operators and bus companies that said this. The public was the market, but they were being given a poor service. Elected authorities had a mandate to manage public transport. Government had to move away from having a remote control model of management. Solutions had to be found on a local basis. The taxi associations had to be empowered. The commuters were not empowered at present. Government was trying to devolve the responsibility of managing public transport to a local level.

Mr Nagel said that a buy-in was needed. He referred to a City of Cape Town document on transport planning which was dated June 2006. He had only received this document in September 2007. The municipality provided no facilities or support. There was not even any form of shelter for the commuters at the taxi ranks.

The Chairperson said that this was what the Committee wanted to achieve. The Committee could not control from a national level. The integrated ticketing system was a provincial project, but it was ludicrous to introduce this without first building an integrated system. Proper planning was needed. Taxi operators might in fact make more money by using an integrated system rather than collecting their own fares. He repeated his feeling that taxis should be used on the shorter routes within an integrated system. If taxi operators were contracted to service these shorter routes they would use less fuel and there would be less wear and tear on their vehicles. An integrated system would then be possible. There was no connection between the province and the city, and the operators did not know with whom they should negotiate. This is what the national government was trying to correct.

Mr Nagel said that his vehicles operated on many routes but none was longer than 8 km. They had made a proposal to government and had spoken to investors. He agreed completely with the Chairperson. There was a question over asset mergers. An investor he had spoken to said that the taxi industry was bigger than Nedbank. In 1990 the industry had presented eleven papers at a transport conference. He had a training document, which was nineteen years old already. The industry wanted to work with government. They should not be ignored.

Mr Maans said that there were various bodies such as the NPR, NPTR, PREs and DPAs. The Bill would compel a taxi operator to apply to one of these bodies for an operating licence. The DPA would issue the licence. He asked what steps would be in place if the DPA refused to grant a licence. He asked if that operator could then apply to the NPTR or PRE.

The Chairperson agreed that clarity was needed. The bodies had different functions, and there was a need to eliminate confusion. He asked the DoT team to comment on the issue of the indefinite permits. It was the intention to grant the operators long-term contracts but these could not be indefinite.

Mr Patel said that there was a plethora of indefinite permits. In some cases operators did not make use of the permits and this impacted on services. The Bill proposed that if indefinite permits were not converted within seven years of the Bill being passed, then they would lapse. The intention was to provide users with a more rational service. While operators were entitled to adequate profits, the users were also entitled to a decent service. Supply and demand factors had to be considered.

He said that indefinite permits were not a right. The question had come to the fore regarding the Cross-Border Road Transport Act. Indefinite permits issued in terms of this Act had been removed. There had been a court challenge in 1998. There were agreements made in terms of the Road Transport Act. The Act said that all of these indefinite permits would lapse, but operators could reapply. The Court found that the permits had value but could not be seen as property in terms of the Constitution. The primary object was to regulate the service.

Mr Neville Dingle, Adviser to DoT, said that it would be a seven-year renewal.

The Chairperson asked if the judgment in the Cross Border Road Transport Act case had a narrow focus.

Mr Dingle said that it was indeed a narrow focus on the permits specified in that Act, but it could be seen as a general precedent.

The Chairperson agreed that it could be seen as a general precedent. South African Bus Owners Association (SABOA) had raised concerns over interim contracts and vested rights. What the Bill envisaged was not an abrupt termination of indefinite rights but a process to be phased in over seven years. The seven-year cycle was based on the estimated time for an owner to recoup the cost of a vehicle. It was not an arbitrary decision.

He said that government policy was moving towards the subsidisation of all modes of public transport. Taxi operators might lose their rights to indefinite permits but there would also be some advantages. Central government was devolving responsibility to the DPAs and Transport Authorities (TAs) such as the Cape Town metro. Any transformation would move towards an integrated system. While this process would affect the current operators there should not be any significant losses of jobs or livelihoods. Any intelligent metro would understand this stance. There was perhaps a need to find the correct wording for the legislation. Change must be accommodated.

Mr Maans asked if government could make laws if there was no transport plan in place. South Africa had no transport plan.

The Chairperson said that there was consideration being given rather to a broad national strategy. There was originally a suggestion to establish municipal funds but this was not necessarily happening. An integrated plan was needed at city level.

Mr Patel talked about the operating licence strategy. It must be finalised after consultation with the relevant industry. The authors of the plan must work with the operators. There should be a mixture between theory and experience. The strategy would lead to licensing. If the competency lay within the municipality an operator could apply to the city for a licence. If this was refused then the operator could launch an appeal. The Transport Appeal Tribunal was in place to deal with such matters. The cancellation of surplus licences was addressed in Section 48(2). The DoT was thinking of removing this provision.

Mr Nagel asked if a municipal transport service would be introduced.

The Chairperson said that they would engage with local government. If this sphere was given powers then it would also have to accept responsibilities.

National Land Transport Bill (NLTB): Deliberations
The Chairperson said that the presentation of the RTA in respect of the National Land Transport Bill had been based on certain perceptions, and the document they presented was not quite complete. There had been two ex parte legal opinions presented. Gauteng and the Western Cape experienced similar problems. The Bill would interface with various Acts regarding the status and functions of TAs. Comments had been made on the version of the Bill submitted to Cabinet and there had already been some changes.

The Department then proceeded to take the Committee through the changes to the Bill.

Clause 1
Mr Patel said that the definition of country services in line 36 should be changed. The word “contract” should be changed to “agreement”. The definition of a DPA had been removed. This was a consequential change in the Bill. There had been a quick clean up. The definition of a national fund had been opposed by National Treasury. The DoT had asked National Treasury for a submission on how they saw the fund. Their feeling was that the issue would be addressed in the final Act as this Bill was a transitional measure. The National Housing Act made reference to a national fund. The DoT needed some understanding from National Treasury on how that fund worked.

The Chairperson presumed that the Clause had been flagged for further discussion. The Committee had endorsed the request.

Mr Patel said that they had not yet received an answer.

The Chairperson suggested that the Clause should be retained if there was no input from Treasury. There should be funds at all three levels of government. This had scuppered the NLTTB. He asked that the input from Treasury be obtained by the next day, or on Thursday 14 August at the latest.

Mr Patel said the same clarification was needed for the provincial funds. In the definition of staff services there was an additional reference to the Structures Act. Local Government was regulated by the Municipal Structures Act of 1998. The term “transport authority” had already been defined. It was a circular reference.

Mr Dingle said that they were doing away with the TA as a separate concept.

Clause 3
Mr Patel said that a new sub clause (2) had been included in the intentions of the Act. Clause 2(c) was similar to the wording of Clause 3, and Clause 3 could perhaps be included into Clause 2(c)

Clause 11
Mr Patel said that Clause 11(1) was still under discussion. This dealt with the role of the different spheres of government.

Mr Dingle suggested that there should be a comprehensive definition of municipal transport. It had to be done clearly otherwise it would imply that all municipalities should perform the same functions. The legislation could distinguish between Category B and C municipalities, but the position was more difficult with Category A municipalities.

The Chairperson asked what had been in the NLTTA.

Mr Dingle said that this would have to be done in terms of the Municipal Systems Act, which dealt with assigned functions.

The Chairperson said there was a need to finalise the deliberations by Thursday. The Constitution intended transport to be an inherent municipal function. No one had defined this. It seemed to be for public transport within a municipality or between adjoining municipalities except in the case of rail transport. A broad definition was probably the best route. There might be a problem with a lack of capacity.

Mr Dingle said that the idea was that the province would fill in where there was no TA or NDA. This would apply to intra-provincial transport.

The Chairperson said that the Constitution intended transport to be a municipal function.

Mr Mashile said that the legislation should not be written to cater for a crisis situation or a lack of capacity. The legislation should provide for institutional arrangements. If the legislation made provision for the province to cover up for municipalities it would become institutionalised. Provinces may be reluctant to return authority to the municipalities. When a municipality had no capacity, there must be some provision to bind the national department to assist.

The Chairperson said that government was looking to anchor inherency, and this was a developmental matter.

Mr Patel said that Clause 11(2) was also under discussion still. It made provision for the provinces to assist municipalities but the national department should also be included so it could assist where necessary.

The Chairperson said that much of what Mr Mashile wanted to see was there.

Mr Patel said there would be a new sub clause (vii). This was still under discussion.

Mr Mashile had a different interpretation. It was not clear that the intent was capacity building. The DoT was doing this for the municipalities but this assistance could not go on forever.

The Chairperson said that this was in sub clause(v). Sub clause (vii) was more about provincial planning. Provinces had to make sure that municipal planning was in line with that at provincial level.

Mr Dingle said that Gauteng had said that provinces must have responsibility for implementation. The Gautrain was a particular example, as it would travel through three different municipalities.

Mr Patel said that the DoT was looking at revising Clause 11(2)(c) It was not yet fully formulated. It related to the responsibility of municipalities. Sub clause (iv) did not sound right.

Mr Mashile asked if this referred to provincial or municipal departments.

The Chairperson asked what the DoT wanted to see happening. The grammar was needing to be tightened up, but the principles were fine.

Mr Lucas was concerned about small municipalities. They did not have capacity nor did they have business sense. They were already short of funds. Most functions were outsourced. This was not a very good thing.

The Chairperson said that as more requirements were imposed on municipalities, more appropriate funding was needed. Funding could come from subsidies and from the fees for permits and licences. Finance was needed. This was the right principle.

Mr Patel said that there would be a new sub clause after Clause 11(3). The matter had been raised by municipalities. This amounted to joint exercises with neighbouring municipalities.

Mr Dingle said this had been dealt with already. The DoT suggested that all the provisions for this should be in one place.

The Chairperson said that it would be a major challenge to get everything in one place. They were looking for a single authority for nearby municipalities. This should be regulated by the Municipal Systems Act.

Mr Mashile referred to the supervisory role of provinces, and said that provincial boundaries may run between such nearby municipalities.

Mr Dingle said that municipalities had inherent functions. Provincial and national departments were not permitted to infringe on these. The case of two municipalities cooperating with each other was a different matter. Section 83 of the Municipal Systems Act spoke to this situation.

The Chairperson asked what the oversight position would be in a cross border situation. Broad policies would have to be put in place.

Mr Mashile did not want to see the provinces encroaching on municipalities. Cooperating municipalities could have an equal emphasis where they were equal partners.

Mr Patel said there was not sufficient information regarding the Municipal Systems Act. This would be a role for MECs.

The Chairperson said that perhaps the MECs should be involved. The Bill would create an opening for the MEC to intervene, but his authority could not be exercised in another province.

Mr Patel said that Clause 11(4) would be renumbered 11(5). This portion would form part of a separate clause. The DoT could discuss the functions but would be guided by the Constitution.

Mr Dingle said that legally it was not needed.

Clause 16
Mr Patel said that there was a need to have another look at Clause 16. This dealt with the definition of municipal public transport.

Mr Dingle said that in terms of sub clause (2) it would be wrong to expect municipalities to apply for functions that were already assigned to them. The public transport strategy had identified twelve metros. The Demarcation Board had done its job. Some other municipalities were aspirant metros. If he understood the Department of Provincial and Local Government (DPLG) correctly then public transport could be defined as an inherent function. Provinces could play a development role. Some kind of formulation was needed.

The Chairperson asked if they could assume that a TA would be set up at a minimum of a district level.

Mr Dingle said that there could be a strong municipality within a district.

The Chairperson said that they might have to maintain the same arrangements as in the NLTTB. This would take time.

Mr Dingle said one could not expect the rural municipalities to operate at the same level as the metros.

The Chairperson had no problem with Clause 16(l), especially with the 2010 requirements in mind.

Mr Mashile asked why the Bill referred to metropolitan municipalities rather than the category of the municipality.

Mr Patel said they could have called them Category A municipalities.

The Chairperson said that sub clause (2) was a potential problem.

Mr Patel said that in sub clause (4) there was a reference to the eThekwini municipality, which had a TA already. It was an interim arrangement.

The Chairperson said that there was no specific reference to the existing TAs . There could be more by the time the Bill was enacted.

Mr Mashile said that Clause 16(2)(b) had a different interpretation of the necessary capacity.

Clause 17
Mr Patel said that Clause 17 was a clean-up of Clause 30. This dealt with the establishment of a special division for the arrangement of administration of the TA. This removed the concept of the DPA. Every TA must establish such a division. There would be horizontal integration of functions.

Mr Mashile asked if this was referring to the metros.

The Chairperson replied that the metro would be the TA. Each would have to establish an internal division. They would be supported by the provisions of Clause 17. Sub clause (2) dealt with land transport and not public transport. The emphasis was on land planning.

Mr Mashile said that municipalities would graduate to becoming TAs. There was a call for dedicated divisions. Only these divisions might have the capacity, and this could weaken the municipalities.

The Chairperson said that considerable powers had been given to the TAs. Some municipalities were increasing their capacity but were not yet up to scratch. The municipality should have a public transport division; and if not it should have a TA.

Clauses 18 & 19
Mr Patel said that Clause 18 dealt with the founding agreements for TA’s. Clause 18 concerned governing bodies and staffing. Both of these Clauses had been deleted.

The Chairperson said that these were consequential to the decision not to have TA’s as eternal agencies.

Clause 20
Mr Patel said that there was a consequential renumbering of the Clauses. Clause 20 (1)(m) had been raised by SABOA. It dealt with gross takings.

Mr Dingle said that fares were currently being collected on a net basis. The operator kept the fares and was paid a rate per kilometre. In the gross system the TA collected all the fees and paid the operator his dues.

Mr Lucas said that Clause 20(1) referred to prescribed funds. A list should follow.

Mr Dingle said that the drafters  would have to go through the Bill for sequential changes. It was not as difficult as it sounded.

Mr Patel said that the consequential changes would be done by Thursday.

The Chairperson said that it was an arduous task. He reminded the legal team of the three-day rule. The Bill would have to be printed and translated before being debated in the National Assembly. There could be disastrous consequences if this rule was not observed.

Mr Mashile said that Clause 20(1)(b) referred to the South African Rail Passenger Corporation. He asked if this should not be the South African Rail Commuter Corporation (SARCC).

The Chairperson said that the name might have changed by the time the Bill was enacted.

Mr Dingle said that they would then have to revert to being SARCC.

The Chairperson said this was one of the problems with having such a long lead-time.

Mr Patel went through a number of changes to the wording of Clause 20, as set out more fully in the attached document.

Clause 21
The Chairperson said Clause 21 would become Clause 19. This made allowances for TAs. This could be the municipality itself or an external body. Relations of municipalities to provincial and national government were prescribed in the Inter-Governmental Relations Framework Act.

Mr Dingle said that all inter-governmental issues should be cleared up.

The Chairperson said that these issues were covered by existing legislation.

Mr Mashile said that in the renumbered Clause 19(2), which referred to recommendations, the word “must” should replace “may”. He did want to see cooperation, and therefore this should not be discretionary.

Clause 22
Mr Patel said that Clause 22 was a clean-up of Clause 31.

The Chairperson said that it was a substitution for similar wording.

Mr Patel agreed that this was so.

Clause 23
Mr Patel said that Clause 23 had been deleted as it described the TAs.

Clause 25
Mr Patel said that in Clause 25(1)(b)(i) the reference to a DPA would be changed to a TA.

Mr Dingle said that this was a new concept. The Bill left all aspects of regulation to the NPTR. In places like Tshwane, Sasolburg and others, people commuted daily between two provinces.

The Chairperson said that in such cases key facilities such as bus terminuses could be outside the area of the TA’s responsibility.

Mr Dingle said this could also apply to short inter-provincial routes such as the Molato corridor. He asked what the difference would be to the situation with commuter routes.

The Chairperson said that Tshwane should feature prominently in such arrangements but should not be seen as running the affairs of other provinces.

Mr Patel said that the drafters would have to take another look at this. Tighter descriptions of functions should be included.

The Chairperson said that in cases like that of Tshwane, the predominant city’s responsibilities must be included in the legislation. It could not be an exclusive TA. Note had to be taken of the legislation regarding inter-governmental cooperation between provinces and municipalities. He doubted that national government could simply prescribe these issues to municipalities.

Mr Patel said that agreements should be in place.

The Chairperson said that Minister might step in to give clarity.

Mr Mashile said that operator licences should be preceded by planning.

The Chairperson said that the National Public Transport Regulator (NPTR) would be the licensing authority. They might also be the appropriate entity for regulating public transport arrangements that crossed provincial boundaries.

Mr Patel said that Clause 25(6) was an addition. This provided that a municipal public transport regulator should take responsibility in its area for the roll out of plans.

Clause 28
Mr Patel said that in Clause 28(1)(b) the reference to the DPA was to be replaced by the TA.

The Chairperson said that the TA would be able to make decisions on licences for services for daily commuters.

Clauses 31 & 32
Mr Patel said that Clauses 31 and 32 would be deleted, as the TA’s would take over the roles envisaged for the DPAs.

Clauses 33 & 34
Mr Patel said that Clause 33 addressed the proposed National Land Transport Fund and Clause 34 the equivalent fund at provincial level. The need for these funds was still being discussed with Treasury.

Clause 35
Mr Patel said discussions had been held with cities. There was a need for a Municipal Land Transport Fund. The question was whether this should be reserved for passenger services or left to the discretion of the relevant TA. Funds should perhaps be ring-fenced.

The Chairperson said the Fund might perhaps be used for services such as remote freight depots. The money granted by government was often used for purposes other than for which it was intended.

Mr Patel said the focus should be on municipal public transport.

Mr Dingle said that there would be a question of interpretation as to whether Bus Rapid Transport (BRT) networks, and new roads fell within the description of public transport.

The Chairperson said that ring-fencing funds would be a solution, but the goal could be achieved in other ways. There were pros and cons to all the possible solutions.

Mr Dingle said that sub clause (7) would be amended by the addition of the Minister in the process. Reports would also go to the Minister of Finance.

Mr Patel said that cities were of the view that funds should be kept at local level.

Clause 36
Mr Patel said that this Clause would be subject to consequential change as it dealt with the affairs of the DPAs.

Clause 40
Mr Patel said that Clause 40 would be renumbered, as there was no sub clause (2).

Clause 42
Mr Patel said that a new sub clause (6) would be added to indicate that planning was a two-way process. This was implied but not always done. Part of the plan should be forwarded to the authority.

The Chairperson said that the planning authority was the TA.

Mr Dingle said that a district authority must make its plan known, especially when it involved movement between areas. Identification would be a problem in practice.

Clause 43
Mr Patel said that Clause 43(3) would change the requirement for updating the framework from two to five years.

Clause 51
Mr Dingle said that in Clause 51(2) at line 34 the word “must” would be changed to “may”. The impression would otherwise have been created that this was a mandatory step.

Clause 54
Mr Patel said that in Clause 54(2), the word “or” would be added at the end of sub paragraph (a).

The Chairman queried the provisions of Clause 54(1).

Mr Dingle explained that the Bill was drafted with a separate TA in mind. The intention was not to prevent a municipality from operating its own transport service.

The Chairperson asked if sub clause (1) should not then be omitted from the Bill.

Mr Patel said that this could be done.

Mr Dingle said that the drafters had not yet studied the whole Bill for consequential changes. Clause 54(2) would only arise only if two adjacent municipalities were providing subsidies. This Clause was still needed to ensure fair competition.

The Chairperson asked how this would affect the SARCC.

Mr Dingle said that in the past provincial bus companies had tendered to run services in other provinces.

The Chairperson said this was not necessarily a problem.

Mr Dingle said that there had been a number of provisions in the NLTTA. He asked how ring-fencing could work at provincial level.

Mr Mashile noticed that Clause 54(4) referred to a municipal Fund. Any income would go into that municipal fund.

Clause 58
The Chairperson said that the scrapping of old taxis had to be part of the rationalisation process.

Mr Dingle said that the DoT did not want to perpetuate the radius-based permit system.

Clause 59
Mr Patel said that the words “or a permit” would be added after the words “operating licence” in Clause 59 (1).

Clause 62
Mr Dingle said that superfluous words in Clause 62(1)(a) would be removed.

Changes Suggested by SABOA
Mr Patel then went on to describe some of the changes that had been suggested by SABOA, clause by clause.

Clause 1
Mr Patel said that SABOA had suggested that the definition of “negotiated contract” was too limited. The definition of “subsidised” should show an expanded intent.

The Chairperson said this would be in line with expanded thinking.

Clause 8
Mr Patel said that a new sub clause 8(2) had been proposed. This would make provision for public comment on regulations.

The Chairperson was happy with this.

Mr Patel said that Clause 8(1)(l) should be deleted.

The Chairperson agreed. This would give government too much involvement in the affairs of private organisations. The TA could put pressure on this aspect of corporate governance. It was not a matter for the national Ministry.

Clause 24
Mr Patel suggested that SABOA had suggested that the NPTR should retain a number of dedicated officials. They had proposed an additional sub clause (5).

Mr Dingle said that SABOA was concerned that more expertise was needed in the regulator.

Clause 48
Mr Patel said that SABOA had suggested that sub clause (2) could be deleted, and the content of this could be incorporated into sub clause (1). This would determine whose licences would be cancelled in the event of there being too many operators.

The Chairperson said that the wording was a bit clumsy. It seemed to suggest that even illegal operators would be accommodated.

Mr Patel said that the drafters would change the wording. He agreed that the use of the word “eliminate” was an unfortunate choice.

The Chairperson said that the first step had to be the identification of illegal operators.

Mr Mashile sketched another scenario. Public transport was not integrated at present. There were new housing and business developments in the country, and new transport operators opened up new routes to service these developments. Some even made use of bakkies (light delivery vehicles) to transport people. He asked what the planning authorities did about this. The TA would take the route over when business was good.

The Chairperson asked why the DoT was moving towards tender contracts. The Committee did not want to see the bakkie operators continuing. There was a question of redundant and unauthorised operators, which needed to be cleaned up. He was not sure if this needed to be said explicitly.

Mr Dingle said that the suggested clause did specify the case of a surplus of legal operators.

The Chairperson said that this would get around the problem.

Clause 50
Mr Patel said that SABOA had suggested that the word “should” in line 12 of Clause 50 (2) be changed to “must”.

The Chairperson said this would set an obligation on the TA to involve local operators.

Clause 55
Mr Patel said that, in answer to the questions raised by SABOA, the heading would be amended to read “Existing Contracting Arrangements”. Clause 55(1) would be replaced and more sub clauses would be added.

The Chairperson said that the contracting authority should be encouraged to negotiate arrangements with licence holders.

Mr Patel said that they had spoken to the municipalities of Nelson Mandela Bay, Johannesburg and eThekwini. Negotiations were going well.

The Chairperson said that the issue had been raised at National Economic Development and Labour Council (Nedlac). He was concerned that this had not come to the Committee. It was a labour matter. The DoT was responsible for finding a solution. The heads of agreement had built a united front. There was a danger of job losses.

Mr Dingle said that a new operator must take on 75% of the staff of the previous contractor. There was an agreement between bus operators, labour organisations and provincial authorities. He would not like to see legislation on this. If there was a monetary value this could be determined on a monthly basis.

The Chairperson said that there could be some reference to job preservation. No numbers needed to be attached. Many jobs could be created.

Mr Mashile said that this had been done with baggage handlers at airports with the change of operating company.

The Chairperson said that some operators were worried by the tendency to competition. Lower tenders could be submitted by operators who provided fewer jobs and who operated with miserly labour practices.

Mr Patel said that it would be a good suggestion to protect the rights of existing workers. They were presently in negotiations. What was better for the operator must be better for the worker.

Mr Dingle said that cities would negotiate with the operators.

The Chairperson said that cities had responsibilities. Sub clause (4) was prescriptive.

Changes Suggested by Southern African Tourism Services Association (SATSA)
Clause 24
Mr Patel said that SATSA had suggested a change to Clause 24(2). A person with knowledge of the tourism industry should be part of the NPTR.

Mr Mashile did not see the need for the tourism industry to be represented.

The Chairperson said that there was a need for expertise.

Mr Mashile was not convinced. Even taxi operators could transport tourists.

The Chairperson said that the important issue was the kind of competency that was required. There were special needs for tourists.

Mr Mashile reiterated that it was not necessary to have someone from that sector to represent their interests.

Clause 66
Mr Patel said that a change had been suggested to line 9 of Clause 66 (1).

Clause 91
Mr Patel said that it had been suggested that in Clause 91(3) the reference to a provincial tourism body should be deleted.

Clause 92
Mr Patel said that SATSA had suggested that additional provision should be made in subclause (3) for the law enforcement process.

Discussion
The Chairperson suggested that there had been some leakage.

Mr Mashile said there had been some debate about Clause 12.

Mr Patel said this Clause would remain in place.

Mr Dingle said that there was a special concern about a traffic official owning a public transport vehicle.

The Chairperson said there was a question of consultation. The TA was replacing the DPA. He asked if that meant that no member of a municipality that incorporated a TA could have any involvement in public transport.

Mr Patel said that this prohibition would only be applicable to those municipal officials directly involved with the TA.

The Chairperson asked the State Law Advisers to apply their minds to how to establish a rational fair system. The legislation had to stand the test of constitutionality. He asked that they review the wording changes discussed today, so that the Committee could finalise the Bill.

Mr Patel said that the drafters would address the institutional changes. He thought that they could be ready to present the wording changes by 14h00 the next day.

The Chairperson said that it was a laborious but necessary process.

The meeting was adjourned.