Civil Aviation A/B: deliberations; RABS Bill: rejection

Meeting report

The Chairperson opened the virtual meeting, greeting and welcoming the Members. He noted absentee apologies from the Deputy Minister and the Director-General of the Department of Transport, as they were attending a Cabinet function. The Chairperson noted the presence of the Minister of Transport.

The Chairperson stated that the Committee’s agenda for this meeting were as follows:

• Deliberations on Civil Aviation Amendment Bill
• Committee decisions on the Road Accident Benefit Scheme (RABS)
• Consideration of the draft report on oversight site visits
• Revisiting previous meetings’ minutes

Having concluded the agenda items, the Chairperson invited Members to deliberate on the Civil Aviation Amendment Bill. 

Civil Aviation Amendment Bill deliberation

Mr C Hunsinger (DA) reminded the Chairperson that in the previous meeting, it was stated that the nature of the Civil Aviation Amendment Bill was an especially intricate and technical matter that demanded that the Committee include Parliament in its deliberation. This was in order to ensure that details were not omitted and to improve the accuracy of the Bill and to ensure that there would be fewer amendments to the Bill once it became an Act of Parliament. He asked Members to support him in ensuring that Parliament was included in the conversation pertaining to the Civil Aviation Amendment Bill. Mr Hunsinger noted that the Bill referred to a consultative process and reiterated that the consulting process the Committee chose should include Parliament to ensure that the Civil Aviation Amendment Bill was representative.

Mr Hunsinger emphasised the importance of drafting a Bill that would guard South Africa’s integrity and maintain a standard to the international community.  For this reason, it was imperative that the Committee included Parliament in the drafting the Civil Aviation Amendment Bill rather than simply opting for an internal Portfolio Committee process. He added that the Committee should include a clause in the Bill that would automatically trigger a judicial enquiry in an aviation disaster where lives were lost. He commented that it would have been ideal to have an independent body such as ASIP to lead investigations in this regard. However, under the current financial constraints a judicial enquiry was the best option. 

Mr L Mangcu (ANC) quoted section 22 of the report and expressed that he felt that investigations on administrative issues should be administered separately from the Department to insure transparency and credibility. He asked for clarity on the rationale for the section 26 amendment. He added that the Committee had intended to meet with the Portfolio Committee on Justice, but the report on the implications of the Insolvency Act had not yet been concluded. This meant that the meeting with the Portfolio Committee on Justice may have to be postponed to a later date. Although it appeared that Members were in agreement regarding the relevant amendment, he urged that the Committee tread carefully in finalising the amendment until the implications of the Insolvency Act were known. The Committee needed input from the Justice Committee before concluding the amendment. 

Mr K Sithole (IFP) queried about the requirement: “for any person collecting money on behalf of the Civil Aviation Authority to establish a trust account”, asking for clarity whether the Civil Aviation Authority lacked capacity to keep track of its own accounts. He further asked for insight on the Civil Aviation Authority’s transformation structures, as this was a matter of interest to the Committee in making its recommendations.

Mr L McDonald (ANC) echoed Mr Mangcu’s sentiments, reiterating that the Committee should urgently meet with the Portfolio Committee on Justice to gain clarity on the implications of the Insolvency Act. He also reiterated the importance of a judicial enquiry for aviation disasters to abate recurrence. He lamented that, where South Africans lost their lives in a Civil Aviation aircraft there previously had been no investigation outcomes.  This was especially egregious because of the loss of aircraft and the negative effect it had had on South Africa’s Aviation reputation, which had resulted in the removal of South African airports from international aviation standards lists.

The Chairperson invited Members to vote on Mr Hunsinger’s request to include Parliament in drafting the Civil Aviation Bill.

Members unanimously agreed that this was the best approach.

Ms M Ramadwa (ANC) stated that she agreed with Mr Hunsinger but asked for clarity on the function to develop regulation.

The Chairperson explained that the function to develop regulations was not removed from the Committee. However, Mr Hunsinger merely required the Committee to engage with Parliament on the matter.

The Chairperson asked Members to deliberate on the automatic judicial enquiry clause.

The Chairperson noted that Mr McDonald agreed with Mr Hunsinger and asked Members to deliberate on the matter.

The Chairperson asked Mr Hunsinger to rephrase his point about the judicial enquiry for clarity.

Mr Hunsinger explained that when an aviation disaster, such as an aeroplane crash occurred, an investigation would be launched to identify the causes of the disaster. However, these investigations often proved to be fruitless, as in most cases the causes of the crash were not identified, which would led to further police investigations. He suggested that a clause that triggered an automatic judicial enquiry into all aviation disasters be included as a remedy.

After experiencing technical difficulties due to load shedding, the Committee elected Mr L Mangcu (ANC) as the Acting Chairperson, as Chairperson Zwane was having difficulty reconnecting to the virtual meeting.

The Acting Chairperson thanked Members for their nomination and welcomed the Deputy Minister to the virtual meeting platform. The Acting Chairperson then directed the Committee to vote on the adoption of judicial enquiry to the Civil Aviation Bill.

There were no objections and the automatic judicial enquiry amendment clause was adopted.

Insolvency Act

The Acting Chairperson confirmed that Members shared the need to meet with the Portfolio Committee on Justice to better understand the implications of the Insolvency Act before amending it.

The Members agreed.

The Committee Secretary advised that Legal Services was present in the meeting to provide insight into any legal issues.

The Acting Chairperson noted this.

Mr McDonald stated that for this specific matter the Committee needed to meet with the Portfolio Committee of Justice specifically.

The Acting Chairperson agreed and responded that he noted that Legal Services was available for questions of clarity and that Members would consult with them when appropriate.

Trust Account

Mr Hunsinger explained that Mr Sithole wanted clarity on the purpose of the Civil Aviation Authority’s trust account as it was important to ensure that the institution could operate independently. Mr Hunsinger responded that the use of trust accounts was a common practice in the legal and property domains. However, the trust that was envisioned in the Act was of a different nature to the ones commonly used for law and property. Mr Hunsinger stated that the wording of the draft legislation should reflect that the trust was intended to protect the Civil Aviation Authority’s integrity and credibility by creating separations of power and function.  

Mr Sithole agreed and confirmed that he was asking for clarity on the purpose of the trust account.

Transformation

Ms Ramadwa pointed out that transformation had a broad reach. Therefore, including it in the Act would overburden the Act. She suggested that an alternative could be to rather include it under “regulations”.

The Acting Chairperson noted Ms Ramadwa’s query on transformation and asked the Legal Advisory Services to advise on the matter.

The Legal Advisor explained that transformation clauses usually occur in the preamble of an Act to assist with the interpretation of the Act.

The Acting Chairperson asked the Legal Advisor to advise the Committee on where it would be most appropriate to place the transformation clause, as Members were unsure whether the transformation clause would overburden the Act.

The Legal Advisor responded that transformation clauses were usually written in the Act itself as a general guide to the interpretation of the Act, citing section 195 of the Constitution.

The Acting Chairperson briefed the Chairperson on the meetings proceedings and highlighted that Members had opted to include the transformation clause in the Act and not the regulation as previously discussed, following an explanation by Parliamentary Legal Advisory Services.

The Acting Chairperson Mangcu handed the chairing role back to Chairperson Zwane.

Mr Mangcu stated that the issue on Section 22 was not dealt with. He reiterated that in his view, investigations on administrative issues should be administered separately from the Department to ensure transparency and enhance the credibility of the investigations.

Members agreed with Mr Mangcu’s observation.

Chairperson Zwane asked Members to express their views on what the Committees standing on the Insolvency Act should be.

Mr Mangcu stated that Members supported the proposed amendment. However, he spotlighted that the proposed amendment required that the Insolvency Act be amended. He added that it was necessary for the Committee to meet with the Portfolio Committee on Justice to ensure that there was concurrence between the Civil Aviation Amendment Bill and the Insolvency Act.

Mr Hunsinger agreed with Mr Mangcu and confirmed that the Civil Aviation Amedment Bill prompted an amendment of the Insolvency Act. However, the Insolvency Act was outside the Committees’ purview and the requisite amendment could only be initiated by the Portfolio Committee on Justice. This would give rise to the need for a joint meeting with the Portfolio Committee of Justice for collaboration. He stated that it may be that amending the Insolvency Act may have broader implications, which the Committee was not aware of.

The Chairperson noted that Members agreed.

Committee Decisions on Road Accident Benefit Scheme

Mr Hunsinger proposed that the Committee should not proceed with the Bill and that a written statement be drafted in accordance with rule 277 to inform the Speaker of the National Assembly of the Committee’s decision not to proceed with the Bill. He cited that the Road Accident Fund Scheme Bill (RABS) was presented to the National Assembly in December 2018. Although the Committee’s report was approved, the Bill was not supported by most of the opposition parties, which caused the Bill to lapse. Mr Hunsinger further stated that in the public participation stage of the Bill across the nine provinces, the Bill failed and only received a 24% endorsement and 58% percent of public participants voting to oppose the Bill.  He further explained that there had been inadequate public participation on the RABS Bill across the provinces. After outlining that the RABS Bill lacked the requisite public participation, he said that the opposition refused to support the Bill when it was presented to the National Assembly in 2018, because it was not pro poor.

Mr Hunsinger stressed that claimants would be worse off under the RABS Bill than if they were to use the current Bill. He noted that the RAF Bill’s expectation for victims to provide their own medical evidence and actively drive their own claims was especially burdensome. He highlighted that the Bill ignored rural conditions and excluded workers from the retail sector from benefitting.  Workers in the informal sector were also excluded from benefitting under the RABS Bill and there was no provision for inflation included in the Bill. He added that the language of the Bill was ambiguous as there had not been adequate financial investigation prior to the drafting of the Bill. Mr Hunsinger concluded that following these reasons, the Bill was anti-poor and should be abandoned. The economic effect of COVID19 could not be foreseen at the time the Bill was drafted, which meant a new financial enquiry would be necessary before the Bill was drafted.

Mr Hunsinger stated that a better suggestion under the current circumstances would be for the Committee to improve the current Bill as it provided more protection to the poor, whereas RABS indemnified the wrongdoer.

Mr P Mey (FF+) agreed with Mr Hunsinger. Mr Mey explained that the Road Accident Fund (RAF) executive had fired 84 lawyers, as he intended to reduce legal costs from R10bn to R2.5bn. He felt that the RAF executive officer was on the right path and that the RABS Bill was not necessary, as most disputes could be settled outside court with RAF personnel. Mr Mey explained that the RABS Bill would have to be implemented parallel to the existing Bill if it were to be implemented, but this would be highly costly and inefficient, as the government would be paying more than the benefit that would be derived from the RABS Bill. Mr Mey emphasised the need for transparency and concluded that the best approach would be for the Committee to advise the Department of Transport to mitigate the high number of road accidents on South African roads primarily.

Mr Mangcu expressed that he disagreed with some of the reasons cited by Mr Hunsinger and Mr Mey to abandon the RABS Bill and suggested that the Committee not abandon the Bill but redraft it anew.

Mr Modise agreed with Mr Mangcu, stating that the RABS Bill had several issues that needed to be addressed, such as the power of the administrative investigator. He supported restarting the drafting of the Bill.

Ms Ramadwa supported Mr Mangcu’s suggestion, stating that in the last meeting, it was agreed that the Committee would amend the 2018 Bill, which meant that Members felt that restarting the Bill would be the best option.

The Chairperson said that Members’ comments were in unison regarding the inadequacy of the Bill that was presented to Parliament in 2018 and that it would be best to redraft the Bill completely.

Mr Mangcu moved for the redrafting of the Bill.

Mr Sithole seconded the motion to redraft the Bill.

Mr Hunsinger asked that the DA dissent to abandon the Bill completely and not to proceed further with it.

The Chairperson noted the DA dissent.

Mr Hunsinger explained that he agreed to amend the Road Accident Fund Act and pointed out that if the proposal to redraft RABS included the amendment of the Roads Accident Fund Act then he could support that motion.

The Chairperson invited Members to deliberate on the matter.

Mr Mey agreed with Mr Hunsinger.

Mr Mangcu disagreed and asked Mr Mey and Mr Hunsinger to consider redrafting the Bill and seeing whether revisiting the Bill addressed their reservations on the matter, before abandoning RABS completely, as this would save time.

The Committee secretary informed the Chairperson that Ms N Nolutshungu (EFF) was experiencing technical difficulties owing to load shedding.

Mr Ramadwa echoed Mr Mangcu’s thoughts redrafting the Bill may address some of Mr Hunsinger’s reservations.

Mr MacDonald agreed with Mr Hunsinger but felt that if the Committee were to redraft the Bill and find that it did not produce the desirable outcomes, then the Committee could embark on amending the RAF Act in general.

The Chairperson noted the Members responses and asked Mr Hunsinger whether he felt redrafting the Bill would address his reservations.

Mr Hunsinger stated that the current Bill’s compensation scheme was desperately in need of solution. Redrafting the Bill would repackage the same issues in a different manner and the issue of servicing two schemes as a result would remain unresolved. He stated that the only way this duplication could be mitigated was to abandon the Bill and amend the Act. He concluded that redrafting the Bill would be a waste of time and would deter the Committee from finding solutions to support the Road Accident Fund in the current circumstances. The RABS Bill would have to be financed parallel to the current scheme, which would overburden the fuel levy.

The Chairperson noted the clarity of Mr Hunsinger’s explanation and asked Members to vote on the matter.

Mr Hunsinger moved to motion the abandonment of the Road Accident Benefit Scheme in its entirety.

Ms Ramadwa asked whether the current discussion could be deferred to allow Members to make a more informed decision.

The Chairperson responded that due to time constraints, Members must take a decision regarding the RABS Bill.

Mr Mey stated that the Executive Officer of the Road Accident Fund was doing a great job. He then voted to redraft the Bill.

Mr MacDonald voted to restart the drafting of the Bill, while considering amending the Act simultaneously.

Mr I Seitlholo (DA) stated that Mr Hunsinger’s reservations would not be eliminated by restarting the drafting process. He recommended that the Committee took a proactive stance by amending the current Bill, as the RABS Bill was unsustainable under the current economic climate.

The Chairperson noted that the majority of Members felt that the Act should be amended and not the Bill.

Mr Hunsinger asked whether the Committee would not be proceeding with the RABS Bill.

The Chairperson confirmed that majority of Members would not consider the RABS Bill but would move to amend the Act.

Mr Mey moved for the abandonment of the RABS Bill.

Mr Hunsinger seconded the abandonment of the Bill.

The Committee Secretary informed the Committee that the Road Accident Fund Amendment Bill was tabled at the same time as the RABS Bill, which prompted the Minister of Transport in the fifth Parliament to withdraw the Road Accident Fund Amendment Bill. Therefore, the Committee was not able to consider amendment as it would have to be presented again by the Minister.

Mr Hunsinger responded that he was part of the fifth Parliament and clarified that there was a particular amendment of the Bill that was withdrawn but not the entire Bill; he added that there was no pending amendment to the Act, which meant the Committee could amend the Act.

The Chairperson noted this.

Oversight Report

The Chairperson stated that the Committee was unable to engage on the final point on the agenda as Members had not received information providing insight into this discussion point.

The Committee Secretary clarified that she had received the information shortly before the meeting, but it could not be circulated to Members timeously.

Mr Mangcu agreed with the oversight visit report and proposed that the report be finalised at the next meeting to prevent a dispute of information.

Mr Hunsinger agreed with Mr Mangcu.

Consideration and adoption of minutes

The Chairperson directed Members to adoption of the previous meeting minutes.

Mr Mangcu asked whether the meeting he was referring to was the joint meeting with the NCOP.

The Chairperson confirmed that this was the meeting he was referring to. He stated that the Committee was scheduled to meet the NCOP but the delegates never arrived, and the Committee had to repurpose the meeting.

Mr Mangcu asked that the word “addressed” in 3.5 be amended to “addresses”.

The Chairperson noted the change.

The minutes were adopted with amendments.

The Committee Secretary informed Members that the minutes for 18 August would be made available on Friday.

The meeting was adjourned.