Economic Regulation of Transport Bill; National Road Traffic Amendment Bill; Public comment on three Bills

Meeting report

Economic Regulation of Transport (ERT) Bill
Ms Thiloshini Gangen, Parliamentary Legal Advisor, advised the Committee on two matters outstanding from the previous meeting. She recalled that the question of further public consultation had come up in March and November. On whether later changes to the Bill warranted a further round of public consultation, she referred to National Assembly Rule 286(6) and three legal precedents (Truworths v Minister of Trade and Industry, South African Veterinary Association v Speaker of the National Assembly, and Doctors for Life v Speaker of the National Assembly). She advised that the changes to the Bill were of a nature that did warrant a further round of public consultation, limited to the specific clauses that had been changed. This could take the form of either oral or written submissions and could be limited to further comments from stakeholders that had been involved in the earlier consultation process.

Mr L Mangcu (ANC) proposed that the Committee follow the advice given but asked for clarity on the limitation of the consultation process. Would it not open the Committee to a possible legal challenge if new stakeholders were excluded from the consultation? He did not think that anyone should be precluded from commenting just because they had not been involved in earlier discussions. He wanted clarity on the legal implications of limiting the consultation to specific clauses.

Mr K Sithole (IFP) was concerned about possible legal challenges if the public participation process was limited. He asked by how long would the consultation delay the progress of the Bill.

Mr C Hunsinger (DA) supported a narrow public participation process restricted to written submissions. He stressed that when he had originally called for further consultations he had not been trying to delay the passing of the Bill.

Ms Gangen explained that a “limited” consultation would not necessarily exclude the public at large, but it would be limited to the new changes to the Bill. She expected that it would take about ten days to set up the consultation.

Mr P Mey (FF+) agreed that the legal advice was reasonable.

Mr Mangcu remained concerned that the consultation process might be exclusive, especially if it was restricted to written submissions. He recalled the Committee’s earlier observation that it had received a submission from Uber SA in the first round of consultations but not from any Uber drivers.

Ms Valerie Carelse, Committee secretary, estimated that the closing date for the public submissions should be around 25 Jan 2022. The consultations could be easily advertised on social media platforms and official websites, but she suggested putting off newspaper advertising until mid-January to reduce the possibility that the adverts were missed by interested stakeholders.

Mr Hunsinger supported the process described by the secretary. He said that the consultation process had been fair and that the new consultations should be limited to written submissions on the specific clauses that had changed.

Mr Mangcu accepted the limitation of the consultations to the specific clauses. He remained concerned about inadvertently excluding some members of the public but agreed to abide by the decision of the Committee.

Ms Gangen next discussed the question of whether ‘amalgamate’ or ‘incorporate’ was the more appropriate word in Clause 4(11)(a) to describe the creation of the single transport economic regulator (STER) through the combination of existing economic regulatory bodies. The Companies Act defined an 'amalgamation' as a transaction or a series of transactions pursuant to an agreement between two or more companies resulting in the formation of one or more new companies which together hold all the assets that were held by the companies prior to the amalgamation. It included the case where one of the original companies survived after the amalgamation. She discussed US Legal and English dictionary definitions. ‘Incorporate’ on the other hand, meant ‘to absorb a company as a legal corporation’ or in the business context, meant ‘to form a corporation or a company,’ where a corporation is the resulting legal entity that separates the firm’s assets and income from its owners and investors. According to the Collins dictionary, it ordinarily meant ‘to include one thing in another,’ but had a different sense in the legal context, while ‘amalgamate’ was the term usually used in government when two entities were joined to form a new entity.

Ms Raksha Haricharan, State Law Advisor, added that ‘amalgamate’ captured the process of combining the existing regulatory bodies. She offered a different sense of ‘incorporate’ from the Collins dictionary as well as a definition from Barron’s Dictionary of Legal Terms, according to which it meant ‘to organize and be granted status as a corporation by following prescribed legal procedures.’ Her suggestion was that the Bill should use the word ‘incorporate.’

Mr Hunsinger noted the opinions offered and maintained that ‘incorporate’ was the better word on the basis that ‘amalgamate’ implied the formation of a new entity and the dissolution of the existing entities, whereas ‘incorporate’ implied the absorption of entities into a newly-formed entity. It was a better description of the process of forming the Regulator.

Mr Sithole supported the use of ‘incorporate.’

The Chairperson indicated that the word ‘incorporate’ would be used. He noted that there seemed to be a difference of opinion between the parliamentary and state law advisors on the drafting style of the Bill.

Ms Gangen was not aware of a disagreement. She had worked closely with the state law advisor, in light of the magnitude and impact of this particular Bill. The result was the best that they could achieve as a team.

The Chairperson noted that further changes had been introduced to Clause 4(11)(b) since the week before.

Ms Gangen explained that these changes had been made to ensure the Bill would read well, even in the future.

Ms Haricharan confirmed that she agreed with the views of Ms Gangen and that the two agreed on the contents of the A-list as a whole.

National Road Traffic Amendment (NRTA) Bill
Outstanding matters from earlier deliberations
Adv Johannes Makgatho, Chief Director: Road Regulation, Department of Transport (DOT), confirmed that, as prescribed by Regulation 110(4), driving licences issued in any of the former homelands were valid.

Adv Makgatho reported that the Joubertina driving licence testing centre (DLTC), which Mr Mey had alleged had been unilaterally shut down by the manager, was currently being upgraded but was still partly operational. Learner licences were being issued three days a week, while Professional Driving Permits (PrDPs) and driving licence renewals were being done from Monday to Friday. There were however no driving licence tests as the test area was under construction.

Mr Mey accepted Adv Makgatho’s report but maintained that the Manager, a Mr Goodman, had acted unilaterally and closed the centre long before the renovations started even though the inspectorate had instructed him to keep it open until then.

Mr A Mbele, the inspector in the case, confirmed the accuracy of Mr Makgatho’s report.

Mr Mey said he had documentary evidence that Mr Goodman had ignored the instructions of the inspectorate. It was the kind of behaviour that was responsible for the lack of service delivery in the country.

Mr Hunsinger conveyed complaints he had received about the Springs DLTC. Some citizens had been waiting for nearly a year to receive PrDPs. People depended on PrDPs for their livelihood. Moreover, there was absolutely no communication from the DLTC during the process.

Mr T Mabhena (DA) shared Mr Mey’s frustration with the behaviour of Mr Goodman. It could not be allowed to stand. He reported that during a recent oversight visit in Limpopo a farmer had simply parked his tractor on the street outside a DLTC and been able to renew the licence for the vehicle without needing it to be tested. There was evidently widespread corruption at DLTCs. Committee members were not trying to catch the Department out but just help it to improve service delivery.

Mr Mey agreed that service delivery was the most important factor.

Adv Alma Nel, Committee Content Advisor, recalled that the Committee had asked the Department to comment on the regulations for foreign citizens obtaining PrDPs in light of the recent violence and the blockade of the N3 by truck drivers.

Mr Sithole asked for a report from the Department on how it planned to deal with these problems. He had listened to the Transport MECs from Kwazulu-Natal and Mpumalanga but they had said nothing substantial, while the problem continued to escalate.

Mr L McDonald (DA) agreed. It was just too easy for foreign citizens to obtain PrDPs, compared to South Africans, who had to get criminal background check and a medical check, while non-South Africans could get a PrDP on the same day they applied. There was not a single South African Uber driver in the Western Cape. He did not wish to appear xenophobic, but given the scale of the unemployment crisis, it was time for the government to start looking after its own.

Adv Makgatho welcomed the Members’ reports of irregularity at DLTCs and stressed that the Department abhorred corruption. He noted Mr Sithole’s request and explained that the Department had published Regulation 116A addressing problems in the PrDP regime. He had been discussing the matter with the parliamentary legal advisor, Ms Phumelele Ngema. He told the Committee that Regulation 319 made it an offence to block traffic on a public road, as had happened in the truck blockade, and twelve drivers had been arrested for a variety of offences due to the blockade.

Clauses 30-33, amending sections 27, 28, 28A and 28B of the principal Act
There was no discussion on these clauses.

Clauses 34, inserting sections 28D-H into the principal Act
Adv Nel explained that these clauses provided for the registration of driving instructors and schools. There was a need for clarity on where exactly an instructor or school registered at a particular DLTC would be permitted to operate, and whether the Bill would contain basic requirements for the registration of driving schools or if these would be prescribed in regulations. There was some ambiguity in the use of the word ‘instructors.’ It sometimes referred to driving teachers and sometimes to driving licence examiners.

Ms Phumelele Ngema, Parliamentary Legal Advisor, noted that it was unclear if the registration and grading provided for in these clauses applied to driving schools or the individual instructors or both.

Mr Sithole asked if the requirement for a driving school to be registered and graded applied retroactively to established driving schools. Who was responsible for the grading? Was it the DLTC CEO, the Transport MEC of the province, or the Minister of Transport?

Mr Mangcu agreed that it was not clear who was responsible for grading, which created the possibility of loopholes and frustration. There was the risk of turf disputes arising if a driving school’s operating range was limited by the DLTC at which it had been registered and graded. The requirement for an instructor to be employed at a registered driving school might inhibit individuals who wanted to work as freelancers or sole proprietors. The provisions should be as simple as possible.

Adv Makgatho said that the registration and grading requirements would apply prospectively. He explained that powers of registration and grading were being devolved from the Minister to the MECs, and drew attention to section 93A which contained transitional provisions. He explained that registration and grading applied to driving schools, but the level at which the school would be graded depended on the competence of the instructors working there.

He noted that the Bill aimed to provide a skeleton while details would be prescribed in the regulations. It would be myopic to restrict the operations of a registered driving school to any region or province. People moved around, and the important thing was that the prescribed requirements for registration were met.

Clause 35, amending section 29 of the principal Act
Adv Nel said that the Department should clarify if the procedures for declaring a licence void would allow the licence holder to make submissions or appeals.

Adv Makgatho explained that the Bill envisioned the creation of provincial inspectorates to thwart the kind of corruption described in Mr Mabhena’s earlier example. The licence holder would have an opportunity to give reasons that their licence should not be declared void; MECs would make the decision; and aggrieved licence holders would have the opportunity to appeal to the Minister.

Clause 36, amending section 30 of the principal Act
There was no discussion on this clause.

Clause 37, amending section 31 of the principal Act
Adv Nel said that this clause should be improved to ensure that it focussed on the licensing of employees employed as drivers and did not inadvertently prejudice employees who were employed in other capacities, such as office work. It could be linked with section 32, which required professional drivers to hold a PrDP in addition to a driving licence.

Mr Mangcu asked the Department to comment on how this clause would assist in resolving the concerns about foreign professional drivers.

Adv Makgatho drew attention to Regulation 116A, which the Department was developing. This regulation aimed to ensure that all drivers of trucks registered in South Africa complied with all the same requirements that South African professional drivers did, including criminal background and health checks. Regulation 116A would place an onus on the owners of South African trucking companies to ensure that their drivers complied with South African regulations.

Mr McDonald wondered how South Africans driving a vehicle registered in another country would be treated under the regulations. There was a tendency for South Africans to buy vehicles in neighbouring countries and drive them in the country.

Adv Makgatho explained that there was mutual recognition of vehicle licences among South Africa and its neighbours. There was no way to prevent people from driving vehicles licenced in other countries, but these people would be inconvenienced when it came time to renew the licence.

Mr McDonald did not think his concern had been addressed. He gave the example that in Mozambique a South African vehicle licence was only valid for thirty days. Meanwhile, there were many unroadworthy vehicles licenced in neighbouring countries on South African roads. In reality, these vehicles were not returned to their country of licensing for renewal because it was too easy to get away with using a forged South African licence.

Ms Ngema suggested that the legal advisors take a closer look at sections 31 and 32 in connection with South Africa’s international agreements and the issues raised by Mr McDonald. Section 32(3), which provided for the recognition of foreign PrDP-equivalent permits, should be a particular focus.

Adv Makgatho agreed.

Clauses 38-41, amending sections 32, 33, 34 and inserting section 53A in principal Act
Adv Nel agreed that there would be a need to deliberate further on section 32. Submissions about the recognition of foreign PrDP-equivalent permits had been received from several stakeholders including the Congress of South African Trade Unions (COSATU) and the South African Driving School Operators Association (SADSOA).

There was no further discussion on these clauses.

Clause 42, amending section 57 of the principal Act
Adv Nel explained that this clause linked the Passenger Rail Agency of South Africa (PRASA) and Transnet Limited to existing provisions on the erection of traffic signs inside rail reserves. She recalled that the Committee had argued that these provisions should apply to private rail operators such as the Gautrain and mines as well the state-owned entities mentioned specifically.

Mr Mangcu confirmed the Committee’s view on this point.

Adv Makgatho accepted the Committee’s view.

Clause 43, amending section 58 of the principal Act
Mr McDonald reported the trend of trucks driving on highways with flashing orange lights, like emergency vehicles, had emerged. How would this be addressed?

Adv Makgatho said that this was an offence and addressing it was a matter of law enforcement rather than regulation.

Mr Hunsinger was concerned about this. He added that there was a trend of drivers using their hazard lights when driving in fog. This was dangerous as he understood that hazard lights were only supposed to be used when a vehicle was stationary. He suggested that the use of hazard lights should be prescribed in regulations.

Adv Makgatho drew attention to Regulation 198, which prescribed the use of hazard lights. According to this regulation, they could be used while the vehicle was stationary in a hazardous position or in motion in an emergency situation.

Clauses 44 and 45, amending section 60 of and inserting section 62A into the principal Act
There was no discussion on these clauses.

Clause 46, amending section 65 of the principal Act
Adv Nel noted that this was the controversial clause reducing the blood alcohol concentration (BAC) limit to 0%. It was likely that it would be challenged in the Constitutional Court on the grounds that it infringed on the right to freedom of religion, or on the grounds that it was irrational because of the limited accuracy of devices used to measure BAC and the validity of these measurements in court. There were concerns about medical conditions such as gut fermentation syndrome leading to some drivers effectively being treated as guilty until proven innocent. It was however accepted that there should be a lower BAC limit for professional drivers.

Mr Mangcu recalled that the Committee had discussed this clause and had not been convinced by the Department’s arguments in favour of a 0% BAC limit. He was concerned that DOT was ignoring the input of the Committee on this matter.

Mr McDonald agreed. The matter had been discussed at length. There were legitimate problems with a 0% limit. For example, many over-the-counter medicines contained alcohol. These medicines were used by the poor in particular. It could not be that people who used such medicines ended up spending a weekend in jail.

Mr Hunsinger said that as long as the existing law was not being properly enforced, making it more stringent would not have the desired effect. Therefore he proposed that the current BAC limits remain unchanged.

Mr Mangcu confirmed that this had been the conclusion reached by the Committee. He was perplexed that the Department did not seem to have considered the Committee’s input.

Adv Makgatho pointed out that it was for the Committee to decide if they accepted or rejected the clause.

The Chairperson accepted this and said that the Committee would proceed according to the view articulated by Mr Hunsinger.

Adv Nel noted that the Committee was still at the stage of clarifying the contents of the Bill. Changes would be dealt with later when the A-list of Committee proposed amendments was prepared.

Written submissions: Railway Safety Bill and Transport Appeal Tribunal Amendment Bill
The Chairperson said that submissions on these two Bills had been received and proposed that the Bills be opened for further public submissions.

Mr Hunsinger supported the Chairperson’s proposal.

Consideration and adoption of minutes of proceedings
Minutes of the meeting on 30 November 2021 were considered and adopted.

Committee members appreciated the work accomplished during the year and looked forward to the work of 2022.

Meeting adjourned.