Transport Appeal Tribunal A/B: Department response to written submissions; Marine Oil Pollution (Preparedness, Response and Cooperation) Bill: Department briefing

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Transport

01 November 2022
Chairperson: Mr L Mangcu (ANC)
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Meeting Summary

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The Committee met with the Department of Transport in a hybrid meeting to receive the Department’s responses to written submissions on the Transport Appeal Tribunal Amendment Bill.

The proposed amendments would refine certain definitions and deal with the fact that the Tribunal did not have a mechanism to monitor the implementation of its rulings by the regulating entities. As a result, some of them chose not to implement them.

With the development of the Railway Safety Bill, the Department also wanted to introduce appeal mechanisms to deal with adjudication by the Rail Safety Regulator and the Interim Economic Regulator.

Members asked questions about how the appeals process would be laid out and whether the provisions would ensure fairness and eliminate interference and conflict of interest. They questioned the mechanism for appointing officials of the Department to assist the Tribunal in its work. Concerns were expressed about the exclusion of provincial MECs from consultations about appointments to the Tribunal. They asked how the Tribunal would be funded.

The Committee was briefed on the Marine Oil Pollution (Preparedness, Response and Cooperation) Amendment Bill for the first time.

Members were told that the Bill would enable South Africa to meet its obligations as a party to the International Convention on Oil Pollution Preparedness, Response and Cooperation. It provided for the processes to regulate and manage the preparedness for major marine oil pollution incidents at the national level and cooperation with other countries. The cooperation would cover the development of contingency plans, research, training and exercise programmes.

The Committee accepted a motion of desirability of the Bill without any objections.

Meeting report

The Chairperson said the Committee had received written submissions on the Transport Appeal Tribunal Amendment Bill from people unwilling to physically appear before it. Having seen the submissions, the Department of Transport (DoT) would take the Committee through its responses to them.

The Marine Oil Pollution Bill was before the Committee for the first time. After deliberations, the desirability of the Bill would be determined.

Transport Appeal Tribunal Amendment Bill: Department Response

Mr Mathabatha Mokonyama, Acting Director-General, DoT, said that the principal Act was promulgated in 1998 and this was the first amendment since its implementation. The amendment was to refine certain definitions and bring the Act in line with certain developments that had taken place since its implementation. The Transport Appeal Tribunal (TAT) did not have a mechanism to follow up and monitor the implementation of its rulings by the regulating entities. As a result, some of them chose not to implement them.

With the development of the Rail Safety Bill, the DoT also wanted to introduce appeal mechanisms to deal with adjudication by the Rail Safety Regulator and the Interim Economic Regulator.

The Department took Members through its responses to the written submissions to the Committee. The Department also received written submissions from the Gauteng and Western Cape departments of transport. 

(See the attached presentation for the responses of the Department.)

The DoT also asked the Committee to consider the impact clause 56 of the Rail Safety Bill would have on the TAT Amendment Bill. The clause dealt with appeals to the TAT about decisions of the Rail Safety Regulator.

Discussion

Mr C Hunsinger (DA) said concerns about interference and conflicts of interest in the adjudication process had been raised. The DoT’s response to that was that it would not happen, but what were the principles to ensure that there were firewalls in the design to give these assurances? Secondly, these legal protection mechanisms were not watertight. What would the remedy be if it was found that there were forms of interference, conflict of interest and undermining?

Section three of the presentation mentioned three levels of appeal laid out in clauses 54, 55 and 56 of the Rail Safety Bill. The first level was the CEO; the second was the board and the third seemed to apply to the Tribunal. What would trigger advancing to the next stage? Why would one not appeal simultaneously to the three layers and what would happen if one got a different outcome from each of these layers? How would that complexity be dealt with given that there could only be one determination at the end?

Mr M Chabangu (EFF) asked if the Gauteng Department of Transport was happy with the comments or changes made. If yes, was there proof thereof? If not, what did the DoT intend to do about it?

Ms M Ramadwa (ANC) said the Department indicated that the appointment by the director general of the designated officials to perform the work of the Tribunal was in terms of the Public Service Act, but what did the Public Service Act say about this? Secondly, the Department said it would request the parliamentary law advisors to change the wording of the Bill. Had this been done? If so, what was the outcome?

Mr K Sithole (IFP) referred to clause 6 of the Bill. The Department said it would request the parliamentary law advisors to make the suggested changes. Had they already submitted them and if so, what was the input? If not, what was the timeframe for submission?

Secondly, he was concerned that the appointment of Tribunal members excluded MECs. This meant there was centralisation while most of these matters concerned the local government and provincial levels. Why is the Department not including MECs and mayors? 

Mr T Mabhena (DA) referred to suggested changes to clause 2 concerning consultations with MECs. The Department responded that there were provincial regulatory entities (PREs) and municipal regulatory entities (MREs) and that the MECs would be responsible for appointing the PREs. In the spirit of inter-governmental relations and given that the public felt that MinMEC mechanisms were not effective, what would the Department lose by consulting with the MECs?

Regarding clause 4, the Department said that the director general (DG) was the one who would decide when the Tribunal must sit. Was this concerning how many issues must be resolved or the appeals coming through? There was an incentive for them to meet without considering the effectiveness and efficiency of those meetings. Perhaps a number could be set for the total number of meetings that could be held?

Mr L McDonald (ANC) said he was wary about the separation of the powers of the DG. There had been a situation where a bill was processed and returned because of a grey zone on consultation with other state entities. The Committee should be wary of going through this whole process only for the Bill to be sent back to the Committee because of a small clause excluding consultations with the MECs. Secondly, how much would it cost to implement the Bill? How was the Tribunal going to be funded?

The Chairperson said that most Members were concerned about the exclusion of the MECs.

Responses

Mr Mokonyama said that, as this was a parliamentary process, the Gauteng Department of Transport ought to come before the Committee where the DoT could engage them.

The TAT existed and the Act was being amended. The DoT appointed a director to provide support to the TAT. The DoT was adding to the TAT’s monitoring and investigative ability to ensure compliance with the decisions of the TAT. The appointment of the director was an additional support structure for the TAT; hence, the DoT was saying that must happen through the Public Service Act. Related to this was the issue of whether that would constitute a conflict of interest. Otherwise, the TAT was working, and supported by the Department. The additional capacity was to deal with the follow-up on compliance with the decisions of the TAT, because some of those decisions were being ignored.

This TAT Bill did not replace the Promotion of Administrative Justice Act (PAJA). All the issues involved in adjudication would have to be subject to PAJA. This was the necessary fallback. Issues around procedural fairness in terms of common law or the audi alteram partem rule would still apply.

People responsible for MREs could not participate at the level of appointment of the person also overseeing appeals. This was where the issue of separation of powers and the role of the MECs lay. They appointed the PREs. The TAT members were the people who must deal with the decisions based on whether the complainant brought in a matter that had been adjudicated by an MRE or PRE. You could not serve in evaluation and adjudication, even on supply chain management matters.

There was no real financial implication except for the additional support staff.

Ms Aadilah Arnold, State Law Advisor, Office of the Chief State Law Advisor (OCSLA), spoke to clause 2 of the Bill and what was meant by section 4 of the presentation. The Bill sought to remove the consultation with the MECs and while there was no violation of the Constitution or the National Land Transport Act, Chapter 3 of the Constitution should be kept in mind. It provided for cooperative government, and this was where the three spheres of government worked together. It was not so much about the separation of powers. Inclusion of the MECs did not mean they would impose on decisions made by the Tribunal. The consultation with the MECs was to get input on the appointment of the members of the Tribunal. A distinction could be made between “in consultation” and “after consultation”. Currently, it read, “after consultation”, and this was merely about hearing what the MEC had to say. “In consultation” would be a stronger objective where there must be concurrence or a meeting of minds.

Ms Phumelele Ngema, Parliamentary Legal Advisor, commented that the processing of the Bill was in line with the parliamentary process and the rules. Any changes must be made after the deliberations and instructions of the Committee. Submission by the Department was received quite late, and it was considered, but not fully. Depending on the outcome of the meeting, the team would work on the process to amend what was presently before the Committee. The parliamentary legal services would be working with the State Law Advisor to ensure that the Bill passed constitutional muster. The legal issues that arose would be dealt with in the A-list Bill. Consultation between the parliamentary legal services and the Department had not taken place yet, but it was within that process that the A-list Bill would be prepared.

Regarding the appeal process referred to in section 3 of the presentation, she understood that the principal TAT Act already set out its own processes for appeals. The TAT structure was already in place and would not be re-established in light of the amendments. The issue was, when an appeal was lodged, who was it lodged with? Was it the DG who must then convey the noted appeal for the deliberations and decisions of the TAT? There was confusion about who received the appeal when it was lodged and how it got into the hands of the Tribunal. Sections 9, 12 and 14 of the principal Act already outlined that, once the appeal was noted and lodged with the Tribunal, they would engage in their own processes per the Act's provisions. The principal Act did not set out how the process must run once the appeal had been lodged.

The other question involved the appointment of the members from the Department who must assist the Tribunal. The Department meant that they were already appointed in accordance with the Public Service Act. Those people who were delegated to assist the TAT in respect of its processes would monitor if its recommendations were being followed. It was a structure that functioned once an appeal was lodged. The appeal started at the DG’s office and was conveyed to the Tribunal. 

Adv. Alma Nel, Content Advisor to the Committee, commented that clause 56 of the Railway Safety Bill allowed for aggrieved persons to submit an appeal to the TAT in terms of section 12 of the principal Act. The principal TAT Act referred to the National Land Transport Act and Cross Border Road Transport Act. The DoT envisions that if an appeal leg was created for railway matters, the TAT Act might need to be amended to include reference to the Railway Safety Act. The National Land Transport Act and the Cross Border Road Transport Act had similar provisions allowing for three levels of appeal. The Railway Safety Bill was not yet finalised. There was concern about adding a reference in the TAT Bill to another piece of legislation that was not yet finalised. The proposal by the Department to add the reference to the Railway Safety Bill might need to wait for a future amendment to the TAT Act once the Railway Safety Bill has been finalised.

Mr Hunsinger said there needed to be clarity about how synchronisation would be effected. The Committee was dealing with a procedural matter, and it needed direction on the dilemma of how it could change the content of a particular Bill that affected another Bill while both were under construction. There should be a way forward to avoid proceeding with one but not the other. The two pieces of legislation should perhaps be synchronised.

The Chairperson said that the Committee would deliberate on synchronisation, but it seemed the Railway Safety Bill would be completed after the TAT Bill. This was what should happen technically. The Committee would deliberate further on this.

Marine Oil Pollution (Preparedness, Response and Cooperation) Bill [B10-2022]

Mr Dumisane Ntuli, Chief Director: Maritime Policy and Legislation, DoT, took Members through the presentation.

He said South Africa was a party to the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC). The Marine Oil Pollution Bill provided for the processes to regulate and manage the preparedness for major marine oil pollution incidents at national level. It also provided for cooperation with other countries when appropriate. The cooperation covered the development of contingency plans, research, training and exercise programmes.

(See the attached presentation for details.)

Discussion

Mr Sithole said that the Department indicated in its presentation that South Africa did not have systems and mechanisms to prepare and plan for rapid response to oil pollution incidents. The lack of systems was worrisome.

Mr Mabhena referred to slide 11 and noted that the method of funding the Marine Pollution and Preparedness Fund seemed quite chaotic. It would be funded from imposed levies, but there was also a section that spoke about penalties, fines and forfeiture. What would happen if everyone was on their best behaviour and all the vessels that came in did not pollute and obeyed the laws of the country? Would this not have a negative impact on the revenue streams? How would the funds be utilised?

Mr Hunsinger said this was a piece of legislation that must be considered very seriously, considering the 2 850 km of coastline that must be protected. The intention was to put legislation in place to be prepared because it appeared that the country was not prepared. Was consideration given to the different access zones - the territorial waters, the economic zones and the extended continental shelf zones? Given the country’s geographical location, it was beneficial for vessels to pass through South Africa’s territorial waters to take the shortest route. Why not impose a fee for using these waters, given the risk to South Africa’s marine area?

The Railway Safety Regulator came to mind, because the existence of the regulator was not contributing to rail safety. All the fines and levies ended up making the regulator richer instead of resulting in safer railways. In the end, there should not be an inflated fund, which still allowed vessels to increase the risk to the coastline. Was any consideration given to that line of thinking in generating revenue for the envisaged fund? However, there was general support for the fund. 

Mr Chabangu asked what consequences there were for ships that persistently did not comply with the laws on pollution or spillage.

Responses

Mr Mokonyama said that the legislation governing the South African Maritime Safety Association (SAMSA) did not go far enough to provide for obligations under international conventions. The Department was closing the gap and making room for future changes so that it did not have to come to Parliament again on this. This Bill would do that at the management level. He noted the issue raised about chasing revenue versus ensuring that safety issues were locked in. The idea was to ensure safety and anti-pollution measures on the water rather than chasing revenue. The fundamental issue was safety. 

Mr Ntuli said there was currently preparedness to deal with pollution incidents. A forum had been created ahead of the legislation that included all the stakeholders required to respond to an emergency when it occurred. However, the benefits that came with the OPRC convention were much greater.

The Department had been working on the Bill for the past two years and consulted widely. There had been a lot of input and a fruitful consultation process. Amendments being made to the SAMSA Act dealt with the fact that SAMSA did not have tools of trade. There were no patrol boats or surveillance equipment, but only a training vessel that had aged. The DoT was empowering SAMSA through this legislation. Its funding was being repurposed and the basket for collection was being broadened. You could not give SAMSA a new function without the resources.

Mr Hunsinger had raised the issue of leveraging the country’s maritime zones for funding. This was a very fine line, because South Africa was party to the Law of the Seas Convention and there were issues of innocent passage.

Regarding persistent polluters, South Africa was part of two port state control regimes. Perpetrators were profiled and tracked. South Africa was regarded as the ship arrest capital of the world. If a polluter could not be caught, a sister-ship of the same polluter could be tracked and attached. There were good numbers to showcase this.

Mr Mabhena asked where an accounting and monitoring mechanism for the preparedness fund would be located. There was no mention of grants from the DoT. One would assume that no grant would be forthcoming. The fact that SAMSA did not have tools of trade was a shame. Ships were at the mercy of pirates, and the Committee should push the National Treasury to assist.

Mr Hunsinger sought clarity on what the international conventions said about protecting territorial waters and access at a particular price.

Ms Thiloshini Gangen, Parliamentary Legal Advisor, said that the Department would have to look at the wording regarding the funding and how best it could be kept as tight as possible.

Mr Mokonyane said he was pleased to hear Members suggesting that the Department should be assisted with funding. The Department would investigate how to ensure that the provisions around funding were tight.

South Africa’s waters were clean. The Department could locate polluters and the number of ships passing through. The aim was to be the maritime centre of the continent. A lot of work was underway. 

The Chairperson thanked the Members and the delegation from the Department for the engagements. It was the desire of the Committee to take maritime matters more seriously and these pieces of legislation were a demonstration of that. The Committee would do its best to support the DoT in its maritime pursuits.

He was of the view that the Committee was comfortable about processing its motion of desirability on the Marine Oil Pollution (Preparedness, Response and Corporation) Bill.

The motion of desirability was accepted by Members without any objection.

The meeting was adjourned.

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