ATC230302: Report of the Portfolio Committee on Transport on the Public Hearings Held on the Transport Appeal Tribunal Amendment Bill, Dated 28 February 2023

Clause of Bill

Section of Act

Comments by stakeholders

Response from the Department

9

(GMA)

16

Our only substantive comment relates to clause 9 of the Amendment Bill, which empowers the Director-General to designate an officer of the Department of Transport to perform such investigation as the Tribunal may require, in order to decide on a matter. We recommend that the power of the Director-General, to so designate an officer of the Department of Transport, be subject to the natural rules of justice relating to management of conflict of interests and fair adjudication of disputes not being undermined by the involvement of a conflicted officer of the Department of Transport in a particular matter.

We, therefore, recommend that clause 9 be couched thus: “The Director-General must [, after consultation with the Tribunal,], subject to natural rules of justice, designate such officers in the Department of Transport as may be necessary to perform the administrative and secretarial work of the Tribunal and to perform any investigations required by the Tribunal that are necessary for, and prior to, taking its decisions.

The Department disagrees with the proposal herein due to the following reasons:

1. The appointment of the designated officials to perform the work of the Tribunal by the Director-General is through the Public Service Act. It should be noted that the investigations that are contemplated are those required by the Tribunal, i.e. the TAT will still decide on whether investigations are required or not. Furthermore, the investigations and research are moreover to place the Tribunal in line with the developments in the Public Transport sector or industry.

2. Again, the Tribunal execute its mandate without fear, favour or prejudice as provided by Section 2 of the Act. No amount of interference is tolerated.

3. Therefore, no conflict of interest might arise as Tribunal officials provide supporting role and played no part in the adjudication processes.

Agreed: it will be changed to – “ … by the Tribunal that are necessary for, and prior to, taking its decisions”. 

The Department will request the Parliamentary Law Adviser to make the change.

6

(GMA)

12

We have also noted that, in the last line under clause 6, it will be more semantically correct to substitute the word “assuring” with the word “ensuring”. We, therefore, recommend accordingly.

Agreed: it will be changed to – “ensuring”.

The Department will request the Parliamentary Law Adviser to make the change.

1

(WCD)

1

The numbering of the sub-clauses in clause 1 is incorrect. Sub-clauses (g) to (m) flow incorrectly from sub-clause (a).

Re-number sub-clauses (g) to (m) as sub-clauses (b) to (h).

Agreed: Sub-clause (a) will be followed by roman figures (i), (ii), (iii), (iv), (v), & (vi).

Agreed: Sub-clause (g) to (m) to be changed to (b) to (h) respectively. 

The Department will request the Parliamentary Law Adviser to make the change.

2(a)

4

“(1) The Tribunal consists of not more than nine, but not less than five members appointed by the Minister [after consultation with every member of the Executive Council in every province responsible for road transport matters]”.

The effect of the proposal in clause 2(a) of the Bill to remove the obligation of the Minister to consult MEC’s of each province will be to remove a critical layer of oversight by provincial stakeholders in the appointment process. This is not in line with the principles of oversight, transparency and cooperative government protected under the Constitution of the Republic of South Africa, 1996.

The following wording of clause 2(a) is proposed:

“(1)(a) The Tribunal consists of not more than nine, but not less than five, members appointed by the Minister after consultation with every member of the Executive Council in every province responsible for road transport matters;

(b) The Minister may require members of the Executive Councils referred to in paragraph (a) to provide input on the appointment of members of the Tribunal within a specified time failing which the member of the Executive Council will be deemed not to have any input.”

OR:

“(1) The Tribunal consists of not more than five members appointed by the Minister after consultation with the Portfolio Committee responsible for transport matters.”

The Department disagrees with the proposals herein and maintained its view of removing the consultation with the Executive Council in every province due to the following reasons:

1. It actually makes sense for the appointment of the Tribunal members not to include consultation of MECs because MECs are responsible for appointment of members of PREs while the Municipalities appoint members the MREs respectively. Separation of powers is thus maintained.

2. Therefore, exclusion of the part dealing with the consultation of MECs will not only ensure independence of these structures but will also instill confidence to the public as the Tribunal is within the mandate of the National Government.

3. Further, the establishment of the NPTR by the Minister does not require consultation with MECs of each province as provided in section 20 of the National Land Transport Act, No. 5 of 2009 (NLTA), accordingly.

4. Furthermore, during the nomination process, in terms of Section 3(a), (b) and (c) of the Act, the names of the nominees are Gazetted for public comments before being considered by the Minister. Simultaneously, the same Gazette is forwarded specifically to the offices of the HOD’s and MEC’s responsible for road transport matters for their attention and consideration in order to make comments, if any. 

This process also compliments transparency and cooperative governance as protected under the Constitution.

3

7

It is suggested that the word “consecutive” be inserted into clause 3 as follows:

“(4)” Despite subsection (3), the Minister may, upon expiry of the term of office of a member of the Tribunal, extend the term of office of that member for a period not exceeding 12 consecutive months.”

Agreed: … consecutive months – to be inserted.

The Department will request the Parliamentary Law Adviser to make the change.

4

9

It is suggested that section 9 (1) of the Act be retained.

It is further suggested that clause 4 be amended by the insertion of a subsection (4) as follows: “(4) The Director-General, in consultation with the chairperson of the Tribunal, must determine the number of sittings of the Tribunal for the next financial year, the estimated number of hours per sitting and the estimated preparation time for sittings.”

The Department disagrees with this proposal herein due to the following reasons:

1. The administration of the Tribunal is through the Director-General, as provided in Section 16 of the Act.

2. The Tribunal has operational budget through the Department and it make financial sense for the Director-General to make financial decisions as the accounting officer of the Department.

3. The Tribunal is not amongst the entities mentioned in the schedules under the Public Finance Management Act, No.1 of 2000, as it is housed / located within the Department.

4. Tribunal Secretariat receives the noted appeals on behalf of the Tribunal for processing.

5. Tribunal members are appointed on a part-time basis and preside on the lodged appeals when invited by the Secretariat through working closely with the Office of the Chairperson or delegated member.

9

16

It is strongly suggested that the requirement to consult the Tribunal be retained.

The Department disagrees with the proposal herein due to the following reasons:

1.The appointment of the designated officials to perform the work of the Tribunal by the Director-General is through the Public Service Act. It should be noted that the investigations that are contemplated are those required by the Tribunal, i.e. the TAT will still decide on whether investigations are required or not.

Furthermore, the investigations and research are moreover to place the Tribunal in line with the developments in the Public Transport sector or industry.

2. Again, the Tribunal execute its mandate without fear, favour or prejudice as provided by Section 2 of the Act. No amount of interference is tolerated.

3.Therefore, no conflict of interest might arise as Tribunal officials provide supporting role and played no part in the adjudication processes.