Merchant Shipping Amendment Bill [B12-2015]: Department of Transport briefing

Meeting report

The Acting Chairperson said an apology had been received from Mr L Mokoena (EFF, Free State) that he was unable to attend the meeting. It was sent via short message service (sms) and the Committee should have been notified in a more formal manner. The Committee Secretary Ms Grace Dinizulu was looking into the matter. He addressed Dr Y Vawda (EFF, Mpumalanga) and said that the Committee expected to receive apologies from the EFF Office in Parliament. The Committee preferred to deal with the political party itself and not the Members when it came to apologies. The Chairperson of the Committee, Mr L Suka (ANC, Eastern Cape) had been redeployed and would no longer serve on the Committee. Ms Z Ncitha (ANC, Eastern Cape) had been assigned to the Committee.

Mr Faber understood it was up to the Committee to vote on a Chairperson for the Committee.

The Acting Chairperson said the ruling party decided on a Chairperson and thereafter the Committee would ratify it. Only where a Chairperson was absent could the Committee elect an Acting Chairperson.

Mr M Khawula (IFP, KwaZulu-Natal) agreed with Mr Faber that it was the Committee who elected the Chairperson.

Mr Faber reiterated that the Committee elected the Chairperson. At the beginning of the year the Committee had nominated a person to act as the Chairperson. 

Ms M Dikgale (ANC, Limpopo) stated that members were detracting from the point of the meeting and apologised to the Department of Transport.

Merchant Shipping Amendment Bill
Mr J Londt (DA, Western Cape) and Mr J Faber (DA, Northern Cape) stated that the DOT briefing should not take up much of the Committee’s time as the DA was in support of the Merchant Shipping Amendment Bill.

The Chairperson asked the Department of Transport not to go into too much detail, as it was evident that Members supported the Bill. It was a Section 75 Bill and he assumed that it had already been with the National Assembly who had made amendments to it.

Mr Adam Masombuka Chief Director: Legal Services, Department of Transport pointed out that National Assembly had approved the Bill without amendments.

The Department of Transport briefed the Committee on the Merchant Shipping Amendment Bill. The delegation comprised of Ms Nosipo Sobekwa Acting Deputy Director General: Maritime; Mr Adam Masombuka; and Mr Pumlani Mbeki, Legal Manager: Maritime Policy and Legislation. Ms Sobekwa undertook the briefing.

The Bill sought to give effect to the Maritime Labour Convention, 2006 (“MLC, 2006”) and Work in Fishing Convention 2007 (“C188”) and to provide for matters connected therewith. The MLC, 2006 and C188 were adopted under the auspices of the International Labour Organisation, (ILO) a United Nations body aimed at promoting the rights of seafarers at work, encouraging decent employment opportunities, enhancing social protection and strengthening dialogue on work-related issues. The implementation of the MLC, 2006 and C188 was a two-fold process. The Department of Labour was responsible for attending to all necessary processes relating to the ratification of the MLC, 2006 and C188 and the Department of Transport had to ensure that domestic legislation was in place to enforce the articles of the MLC, 2006 and C188 that related to the Department. The Republic of South Africa had ratified the Conventions on 7June 2013 by depositing the instrument of ratification with the Director General of the International Labour Office.The main object of the Bill was to amend the Merchant Shipping Act, 1951 (Act No. 57 of 1951) (“the Act”) in order to give effect to the MLC, 2006 and C188 and to provide for matters connected therewith.

The Bill had 31 clauses, the salient features of which were as follows:
Clause 1 of the Bill sought to amend section 2 of the Act, which contained the definitions that guided the interpretation of the provisions in the Act. The clause proposed definitions of "fishing vessel" and "seafarer" as well as definitions of the two Conventions, namely the MLC, 2006 and C188.  The first two definitions were required to bring the Act in line with the Conventions.  The definition of "seaman" in the Act was replaced with the definition of "seafarer" and reference to an apprentice-officer in the definition was deleted. Lastly, a technical correction to the expression "South African ship" was proposed in order to make it clear that such a ship must also be licenced and registered in the Republic.
Clauses 2 3, 4, 5, and 6 of the Bill were consequential amendments as a result of the proposed use of the word "seafarer" in the Act and the deletion of the expression "apprentice-officer" in the Act.
Clause 7 of the Bill amended section 102 by imposing a duty on the Master of a ship to enter into an agreement with the seafarers on behalf of the employer irrespective of the size of the ship or tonnage that the ship carried.
Clause 8 of the Bill amended section 110 of the Act by prohibiting the master or owner of a South African Ship to employ children under the age of sixteen.
Clause 9 of the Bill amended section 111 of the Act by prohibiting the owner or master of a Ship to employ young persons to work at night unless it was part of their training.
Clause 10 of the Bill proposed the insertion of a new section 111A. The new section dealt with the seafarer’s entitlement to leave.
Clauses 11, 12 and 13 of the Bill were consequential amendments as a result of the proposed use of the word "seafarer" in the Act and the deletion of the expression "apprentice-officer" in the Act.
Clause 14 of the Bill amended section 121 of the Act by imposing a duty on the master or owner of a South African ship to furnish the seafarer with a monthly account of his or her wages.
Clause 15 of the Bill sought to amend section 130 of the Act by empowering the seafarer, by means of allotment notes, to pay over any portion of his or her wages to a person designated in the said allotment notes.
The Bill also substituted the reference to the “National Welfare Act” with reference to the Social Development Act, 2001 (Act No. 3 of 2001).
Clauses 16 and 17 of the Bill were consequential amendments as a result of the proposed use of the word "seafarer" in the Act and the deletion of the expression "apprentice-officer" in the Act.
Clause 18 of the Bill proposed a new section 159A of the Act. The new section will impose a duty on the master or owner of a South African ship to make accessible a complaints procedure on board a ship and also allow lodging of complaints by seafarers.
Clauses 19, 20, 21, 22, 23, 24 and 25 of the Bill were consequential amendments as a result of the proposed use of the word "seafarer" and the deletion of the expression "apprentice-officer" in the Act.
Clause 26 of the Bill sought to bring section 355 in line with proposed amendment of the definition of “South African ship” and to correct references to repealed laws.
Clause 27 of the Bill was a consequential amendment as a result of the deletion of the expression "apprentice-officer" and "seamen" in the Act and the proposed use of the word "seafarer" in the Act. The clause also proposed an amendment to section 356(2) of the Act by adding references in that section to the two Conventions namely, the MLC, 2006 and C188.
Clause 28 of the Bill sought to amend section 356bis of the Act.  The amendment sought to provide that the two Conventions, namely the MLC, 2006 and C188 would have the force of law in the Republic from the date on which the Bill if promulgated took effect.  The second proposal in the clause sought to enable the Minister of Transport to amend the Conventions, by notice in the Gazette, after the entry into force for the Republic of any amendment to any of the Conventions.
Clause 29 of the Bill was a general provision for the substitution of expressions or words that were no longer used in the Act.
Clause 31 of the Bill contained the short title and provided for the commencement of the Bill.      

On consultation the Bill was published for comment in Government Gazette No: 36329 on 3 April 2013. Comments were received from Bowman and Gilfillan; the National Economic Development and Labour Council (NEDLAC); the South African Maritime Authority; and the Office of the State Law Adviser. The Office of the State Law Adviser and the DOT were of the opinion that the Bill should be dealt with in accordance with section 75 of the constitution, as it contained no provision to which the procedure set out in section 74 or 76 of the constitution applied. The DOT and the Office of the State Law Adviser were further of the opinion that it was not necessary to refer the Bill to the National House of Traditional Leaders in terms of section 18(1) (a) of the Traditional Leadership and Governance Framework Act 2003 (Act No. 41 of 2003), since it did not contain provisions pertaining to customary law or customs of traditional communities. In conclusion the DOT requested the Committee to approve the Bill for assent by the President.

Discussion
The Chairperson pointed out that Mr W Faber (DA, Northern Cape) and Mr J Londt (DA, Western Cape) had already indicated that the DA was in favour of the Bill.

Ms M Dikgale (ANC, Limpopo) referred to page 19 of the briefing document and felt that the Bill should be referred to the House of Traditional Leaders. She advised the DOT to do so as many of the persons working on the seas stayed in areas where there were traditional leaders.
She also referred to Clause 8 on page 11 which prohibited the master or owner of a ship from employing children under the age of sixteen. Were children being encouraged to leave school as most sixteen year olds were still in school?

Mr M Khawula (IFP, KwaZulu-Natal) in Clause 9 asked what was a ”young person” as mentioned in clause 9.  

Mr B Nthebe (ANC, North West) also referring to Clause 9, said that often times abuse also took place during apprenticeships. What measures were in place to prevent abuse? He asked whether Clause 15 on page 12 could be captured in layman’s terms, as it would be better understood. Many a person would not know what an allotment note was.

Mr Masombuka said that people in the marine industry would know what allotment notes were. It was an instruction by the employee to the employer on what should be done with the employee’s salary. The seafarer employee could instruct the master employer to place stop orders on his salary to pay his accounts or even things like child maintenance.

Ms Sobekwa explained that the use of the word “allotment” was taken from international community practices. The DOT had tried to align the Bill as much as possible with international conventions especially on issues of language. Terms used were taken from the International Labour Organisation (ILO). “Allotment” was one such terms taken from the ILO. There had to be conformity with international standards.

Mr Faber asked what sanctions and penalties were there for contraventions of the Act. Restrictions on children under the age of sixteen could be enhanced. Employment procedures on ships could be expanded upon further in the Bill. 

Ms Sobekwa explained that when a vessel entered a South African port the authorities, or in this instance the South African Maritime Safety Authority (SAMSA), would do inspections on everything and see if there were human rights violations. Even before the 2006 Convention the constitution of SA already protected human rights. The Convention was merely supplementary to our existing constitution. If an infringement was detected then a vessel could be detained. Penalties automatically came into play and the South African Police Services (SAPS) could be called in. The same applied when a vessel left SA. Abuses could be taking place on the sea. The conventions and the Bill made allowances for a complaints process. If a vessel was registered in SA, then SAMSA could handle complaints made.

Dr Y Vawda was concerned about the employment of persons under the age of sixteen whether it was for an internship or for any other reason. He was concerned about a child spending a long period of time on a ship. He asked what the definition of a “young person” was, an age needed to be stipulated.

Mr Masombuka explained that a person under the age of 16 or 18 who was doing an internship was the exception. The definition of a “young person” in the Merchant Shipping Act of 1951 as had been amended over the years was a person under the age of 18 years.

Mr Faber referred to Clause 9 and asked what was meant by “at night”. “At night” needed to be defined. Nighttime was different for different people as it was dependant on one’s location. Around SA, the East Coast could get dark as early as 5pm whereas on the West Coast it could only get dark at 7pm. The legislation could also not specify a specific time like for instance 6pm.  “At night” needed to be clearly defined.

Mr Masombuka pointed out that there was no definition of “night”. Perhaps there could be a resolution on it.

Ms Dikgale was still concerned about the Bill not being referred to the House of Traditional Leaders for consultation. It was a big mistake to sideline traditional leaders.

Mr Masombuka stated that when a Bill was published for comment, everyone including traditional leaders was entitled to make comment. Due to the Bill being classified a Section 75 Bill it did not require that the Bill should be referred to the House of Traditional Leaders.

The Acting Chairperson said that the issue of Traditional Leaders was a constitutional prerogative and it was not up the DOT to decide. On page 17 he asked the DOT to check on the spelling of Gilfillan. He noted that in many of the clauses mention was made of an “apprentice officer”, why was the term removed by the DOT? The Committee had recently visited Hout Bay in the Western Cape. The residents of the area said that ships came into the bay and persons disembarked and became migrants of the area. The issue needed to be looked into. Three months earlier a group of Indonesians was discovered on a boat in South African waters. They had been at sea for a long time and were malnourished. The owner of the boat had refused to take responsibility for them and SA had to deal with them. The Bill provided the means and ways of dealing with this type of situation. The NEDLAC had been consulted on the Bill.

Mr Masombuka responded that the Bill fell outside the area of Traditional Leaders. Procedurally the Bill could go ahead without input from Traditional Leaders in terms of the Constitution. It did not mean that Traditional Leaders could not comment on the Bill. Constitutionally the DOT did not formally have to consult with Traditional Leaders. .
 
Mr Mbeki pointed out that definitions like “apprentice officer”, “seaman” and “seafarer” were debated greatly at the ILO. It was agreed to replace the use of the term “seaman” with “seafarer”. The latter encapsulated everything of a person who was onboard a ship. The use of “apprentice officer” might not cover everyone like the chef on a ship. It was agreed that the use of “seafarer” covered everyone. In many instances the rights of individuals were infringed upon be it on safety or social conditions. The conventions modernised the role of engagements and standardised norms. The Millennium Development Goals spoke about the rights of “seafarers” not being trampled upon.
 
Ms Sobekwa explained that seafarers absconding from their vessels and found at ports caused the International Maritime Organisation (IMO) to deliberate on the issue because it was a real problem. It was agreed that a code had to be developed to deal with the issue. Ships were regulated internationally. The IMO stipulated that the port where there was a stranded vessel had to provide refuge. In Cape Town the Maritime Rescue and Coordination Centre (MRCC) was tasked with this. Stranded persons were provided with food, shelter and were put into contact with their embassies. The process of repatriation had to be started.
 
Mr Faber asked what happened in the instance where a country was not part of the ILO and conventions. What procedure would be followed when a ship from such a country stranded in South African waters?

Ms Sobekwa replied that even if a country were not party to a convention if a vessel was found in international waters then it would be bound by international law. If a ship was docked in a port then domestic law of where they were docked applied.

The Acting Chairperson asked members how they wished to proceed with the Bill. In its next meeting the Committee would have to deliberate and consider the Bill clause by clause with the DOT present. The date of the meeting to deal with the Bill was 1 September 2015. It seemed as if all members were in agreement on the Bill. Did the Committee have to come back to deal with the Bill clause by clause? The Committee would have to check what the legal requirements were to deal with legislation. The Committee would communicate with the DOT as soon as it knew more on what the process ahead involved. He pointed out that in the actual Bill on page 5, sub-Clause 9(g) contained a definition of “night”.

Committee Minutes
Minutes dated the 04 August 2015 was adopted without amendment.
                              
The meeting was adjourned.