National Road Traffic A/B & Economic Regulation of Transport Bill: deliberations

Meeting report

The Chairperson noted apologies from the Ministry. He invited Adv Nel to continue taking the Committee through the A-list changes to the National Road Traffic Amendment Bill.

Portfolio Committee amendments to National Road Traffic Amendment Bill
Clause 21, amending section 15 of the principal Act
Ms Phumelele Ngema, Parliamentary Legal Advisor, pointed out the omission of the content in Clause 21(g) in the A-list was a technical error. The paragraph made it explicit that, for the purposes of section 15, read with sections 23 and 32, ‘driving permit’ included all driving permits required in terms of the Act.

Clause 27, amending section 20 of the principal Act
The change to this clause was a minor change in drafting style.

Clause 28, amending section 23 of the principal Act
Adv Alma Nel, Committee Content Advisor, said that the proposal was to delete this clause and replace it with a new one. She presented a draft of the replacement clause which would tighten provisions on the validity of foreign driving licences and permits by requiring that foreign licences must be subject to regulations prescribed by the Minister, and must be compliant with the Act, and that the holders of foreign licences must apply for a South African licence.

Ms Ngema emphasised that the text was a draft. The intention was that the licencing regime follow the idea that “when in Rome, do as the Romans do.” The clause aimed to be enabling, while the details would be determined by the Minister.

Mr K Sithole (IFP) asked for clarification of the condition described in paragraph 28(c).

Ms Ngema explained that this paragraph would withdraw the status of a licence when the holder was not permanently or ordinarily resident in South Africa, unless subject to prescribed conditions and compliant with the Act.

Mr C Hunsinger (DA) observed that in South Africa, the physical card carried by drivers was not itself the licence. It functioned as proof that the actual licence was recorded in the register of driving licences. This specific section should account for possible grey areas or loopholes arising from this fact by making reference to licence cards or similar proof as well as the licence recorded in the register.

Ms Raksha Haricharan, State Law Advisor, asked how this proposal would be put into practice. Would it require the Department of Transport (DoT) to issue a new type of licence card to foreign licence holders, with all the costs and logistics that implied?

Adv Johannes Makgatho, Chief Director: Road Regulation, DoT, said that the intention of the clause was to ensure that foreign nationals were subject to the same licencing regulations as South Africans. There were international conventions that governed mutual recognition of driving licences. The clause as drafted did not add any great burden on the Department.

Mr Sithole did not think this explanation addressed Mr Hunsinger’s suggestion.

The Chairperson explained that issuing cards to foreign licence holders would introduce expenses and logistical complications that were unnecessary because of the presence of conventions governing mutual recognition of licences.

Mr L McDonald (ANC) agreed that it would not be practical to issue an additional licence card. The aim of ensuring that foreign drivers working in South Africa were subject to the same regulatory constraints as South African citizens was welcome. However, he did not see how the provisions as drafted would help to prevent foreign truck drivers from working for gain in South Africa.

Mr Hunsinger suggested that this could be achieved if foreign licences had a limited period of validity in South Africa, in the order of six months.

Mr McDonald reported that in other countries in the Southern African Development Community (SADC) such as Mozambique, Zimbabwe and Tanzania, the practice was that licences were valid for thirty days. Couldn’t South Africa implement a similar regime?

Adv Nel agreed that the Department might consider such a limit on the validity of foreign licences.

Clause 37, substituting section 31 of the principal Act
Adv Nel explained that this clause would make the vehicle owner responsible for ensuring that a person driving the vehicle was appropriately licensed, and the proposed change expanded it to driving permits. The intention was to place the onus of ensuring that drivers were licensed and permitted to drive on the vehicle owners who were the employers of the drivers.

Mr Hunsinger understood that the intention was to shift the onus from drivers to vehicle owners. He suggested that the clause be more specific – that anyone employed as a driver should require a South African licence. The clause should also provide for a sanction in the case it was violated.

Mr L Mangcu (ANC) asked if the clause provided for a case to be pursued against a vehicle owner who violated the clause. Was the clause enforceable?

Ms Ngema drew attention to section 89, which dealt with offences, penalties and enforcement of the Act in a general way. She would confirm how section 89 applied to clause 37 and report back to the Committee.

Mr P Mey (FF+) observed that driving licences could be renewed at any branch of Shoprite or Pick n Pay. However, there were small towns without either of these stores. If such private businesses could renew licences, why could driving schools – found in every town – not do so too?

Adv Makgatho replied that there was a procedure for registering as a renewal authority of licences in section 3 of the principal Act. Driving schools would have to apply to the provincial authority in terms of section 3.

Clause 38, amending section 32 of the principal Act
Adv Nel explained that the proposed addition to this clause was intended to tighten provisions on the validity of foreign driving permits.

Clause 40, amending section 34 of the principal Act
This provided for the court to notify a provincial Member of the Executive Council (MEC) of a licence suspension and for the MEC to record the suspension in the driving licence register.

Mr Mangcu asked for confirmation that this clause was consistent with other parts of the Act which referred to the Chief Executive Officer of the Road Traffic Management Corporation (RTMC).

Adv Nel replied that licence suspensions were usually processed in the province where the licence holder resided or where the offence had been committed, rather than where the licence had been issued originally. The MEC would then ensure that the suspension was recorded in the RTMC's National Traffic Information System (NaTIS).

Ms Ngema added that issues of consistency would be guided by section 93A, noting that section 34 was not mentioned there. This clause was intended to ensure that the MEC kept records of licence suspensions.

Mr Mangcu said he did not have a concern with this amendment. He understood it was the RTMC, as administrator of the NaTIS system, that was responsible for keeping licence records.

Clause 41, inserting section 53A into the principal Act
The proposed change to this clause was to remove the reference to ‘any person’ and to exclude the powers in section 75 from those that an MEC could delegate.

Mr Sithole asked for clarity on what exactly the proposal would remove or replace.

Mr Hunsinger did not understand what the removal of ‘any person’ was intended to achieve. It was clear that ‘person’ here meant a natural or a juristic person, and power could only ever be delegated to a person in this sense.

Ms Ngema replied that the change was in response to the Committee’s deliberations. It was intended to remove unnecessary redundancy for exactly the reasons Mr Hunsinger described.

Clause 46, amending section 65 in the principal Act
The proposal was to reject this clause, which would have reduced the blood alcohol limit (BAC) for drivers from 0.05 (and 0.02 for professional drivers) to 0g/ml for all drivers.

Clause 47, amending section 75 in the principal Act
The proposal was to reject this clause, which would have removed 'Shareholder Committee' from the process of making regulations and removed the requirement for the Minister to refer regulations to Parliament for comment.

Clause 49, substituting section 80 in the principal Act
The proposal was to replace the phrase ‘laws of any province’ with the phrase ‘prescribed requirements.’ Clause 49 contained provisions on parking for disabled persons, which was often governed through provincial by-laws. The intention was to ensure that this applied to by-laws.

Mr Sithole noted that provinces had different dynamics. He asked for confirmation that this change would not introduce a potential constitutional pitfall for the autonomy of provinces, as had happened with the Administrative Adjudication of Road Traffic Offences (AARTO) Act.

Adv Nel confirmed that the proposed change did not take any powers away from the provinces. It was merely to ensure the clause covered by-laws as well as laws by using a broader term.

Ms Haricharan added that the phrase ‘prescribed requirement’ would cover any law in the country, including the Constitution, any provincial by-law or any regulation.

Clause 50, substituting section 81 in the principal Act
The proposal was to clarify that it was obligatory for persons wishing to manufacture, import or operate an abnormal vehicle to apply to the Minister in the prescribed manner.

Ms Valerie Carelse, Committee Secretary, said that the drafters would now incorporate the Committee’s feedback on the A-list into the Bill.

Committee Oversight Programme
The Chairperson said that the Committee had to re-look at its oversight programme after it had been granted permission to travel only on 28 and 29 March, rather than the whole week. He had suggested visiting the Moloto Corridor, KwaMhlanga and the North West. Was the Committee in favour of this programme?

Mr Hunsinger agreed as the Moloto Corridor and Rustenburg were the most important sites to visit.

Mr Sithole argued that the reduced programme reduced oversight to a mere formality. It should be postponed until it could be done thoroughly.

Mr Mangcu agreed that the proposed dates should be reconsidered. Perhaps the Committee could start its oversight visit on Saturday 26 March.

Ms M Ramadwa (ANC) supported the Chairperson’s proposal to visit just the two provinces but only if Mr Mangcu’s proposal to start on Saturday 26 was accepted.

Members indicated that they were available to start on the Saturday.

Ms Carelse said that this would have to be approved by the House Chairperson and Chief Whip.

Economic Regulation of Transport Bill
Mr Mangcu was elected as acting Chairperson.

Adv Nel continued to present the DoT responses to the second round of public submissions. These submissions addressed the Portfolio Committee proposed amendments to the Economic Regulation of Transport Bill.

Comments from maritime sector and Passenger Rail Agency of South Africa (PRASA)
The South African Association of Ship Operators and Agents (SAASOA) had argued that clause 4(2) should make explicit reference to various divisions of Transnet as the only entities to which the Bill should apply. The Department had not agreed. The Department had also not agreed with SAASOA’s comments on clause 4(2) that the Bill should only apply to state-sanctioned monopolies because anti-competitive behaviour in the private sector was already dealt with by the Competition Commission (CC).

Mr Sithole observed that the Department merely noted some of the comments they received. He would prefer it give more substantial responses, even to submissions that were just comments, not recommendations.

Adv Nel noted that PRASA suggested the addition of certain conditions on requests by access seekers to the Regulator that infrastructure owners make investments. The Department had not agreed on the grounds that these conditions could be embedded in regulations or in contracts between infrastructure owners and access seekers.

The Committee accepted the Department’s response to the PRASA comments.

Comments from rail sector
Adv Nel said that the African Rail Industrial Association (ARIA) proposed that clause 7(1) provide that access agreements must include conditions that would render the agreement invalid automatically. The Department had disagreed, arguing that clause 8 would cover ARIA’s concern.

Members accepted the Department’s response to ARIA’s comments.

Adv Nel pointed out that the clause 7(1) provided minimum required conditions only, and that it was standard practice to include the kinds of conditions ARIA suggested in the access agreements. ARIA, together with Traxtion, also argued that clause 8 did not shift the balance of power sufficiently away from Transnet, which should become an ordinary train operator, while a separate entity controlling the rail network should be established. The Department argued that this went beyond the scope of the Bill but might be addressed in the Rail Policy. The Department had however agreed to ARIA’s proposal to add provisions to clause 10 that would place some conditions on the ceding and transferring of access rights.

The Committee accepted the Department’s response to the ARIA and Traxtion comments.

Comments from aviation sector
The Committee accepted the Department’s response to comments on clause 11 from the Regulating Committee of the Airports Company of South Africa (ACSA) and Air Traffic and Navigation Services (ATNS), the Airlines Association of South Africa (AASA), the International Air Transport Association (IATA) and the Board of Airline Representatives of South Africa (BARSA). The Department had not agreed to most of the comments but had welcomed the proposed addition to clause 11(9)(b) that would empower the Single Transport Economic Regulator to set a price rebate mechanism when standards for price-controlled services were not met.

The Committee accepted the Department’s responses to comments on clauses 12 and 15 from AASA, IATA and BARSA, and on clause 14 from the ACSA / ATNS Regulating Committee. The ACSA / ATNS Regulating Committee also suggested amending Schedule 1 so that it would not repeal certain sections of the Airports Company Act that provided for the establishment and activities of the Regulating Committee. The Department had not accepted this suggestion.

Mr Moeketsi Sikhudo, DoT Project Manager: Single Transport Economic Regulator, explained that the rationale for not accepting the Schedule 1 suggestion was that it would mean adopting the existing economic regulatory regime in the aviation space, separate from the other modes.

Adv Nel suggested that the ACSA / ATNS Regulating Committee concern might be that their ability to regulate the aviation sector could be impacted in the interval between the passing of the Bill and their future incorporation into the Regulator if the relevant sections of the Airports Company Act were repealed.

The acting Chairperson asked for confirmation that the ACSA / ATNS Regulating Committee activities would not be affected prior to their incorporation into the Regulator.

Mr McDonald proposed that the Committee seek legal advice on the matter. There was a risk of creating a regulatory vacuum.

Ms Thiloshini Gangen, Parliamentary Legal Advisor, requested time to consider the matter with the state law advisor.

The acting Chairperson granted the request.

Comments from freight logistics sector
Adv Nel recalled that the Freight Logistics Association (FLA) argued that the price control provisions of section 21 were insensitive to the key role of the freight transport sector in industrial supply chains. The Department had responded that the reductions provided for in this clause were equivalent to a fine but with the advantage that the benefit was distributed to customers.

The Committee accepted the Department’s response.

FLA also argued that the focus of the Bill should be the regulation of charges by the owners of public infrastructure (i.e. government agencies) to the users. The Department had partially agreed, but maintained that there was a good case for the Bill to regulate some privately-owned infrastructure such as the Richards Bay Coal Terminal, which might have features of a monopoly.

The Committee accepted the Department’s response.

FLA also argued that pipeline transport should be regulated in the Bill alongside other modes of transport, which would imply the transfer of responsibility for pipelines from the National Energy Regulator of South Africa (NERSA). The Department responded that this was outside the scope of the Bill.

Mr McDonald tended to agree with FLA that pipelines should be considered a form of transport and regulated accordingly. He asked the Department to clarify its position.

Mr Sikhudo agreed that pipelines were a form of transport. However, responsibility for regulating pipelines remained with NERSA. The approach of the Department in designing the Regulator was not to take on responsibility in areas where regulation was presently functioning well. The question of whether pipeline transport should be the responsibility of the DoT or the Department of Mineral Resources and Energy was a policy matter that might need to be addressed, but this should not delay the processing of this Bill.

Adv Nel and Ms Gangen agreed that the Bill should not attempt to regulate pipelines at this stage.

Mr McDonald accepted the explanation.

Minutes of the meeting on 8 March 2022 were adopted.

The meeting was adjourned.