Hydrographic Bill: briefing; Defence Amendment Bill: postponed

Meeting report

The Chairperson said that the committee had no quorum and therefore could not deliberate and finalise the Defence Amendment Bill according to the programme. What would be dealt with in the meeting would be an introductory briefing by the Department of Defence on the Hydrographic Bill. It was a section 75 bill that did not affect provinces, and therefore could be dealt with in the Committee and finalised there. 

Hydrographic Bill.

Lieutenant Mashigo said that hydrography was a branch of applied sciences which dealt with the measurement and description of the physical features of oceans, seas, coastal areas, lakes and rivers.  The national hydrographic services support safe and efficient navigation, facilitate the protection of the marine environment and support national security and maritime defence. South Africa had been a signatory to international conventions relating to the monitoring of maritime safety under the auspices of the United Nations (UN) since 28 February 1995. Since 1954, the Department of Defence (DOD) had been solely responsible for the provision of hydrographic services.

In 2008, after a voluntary inspection by the International Maritime Organisation (IMO), South Africa was found to have adhered to the Safety Of Life At Sea (SOLAS) regulations, except that the hydrographic services were not being provided by a well-organised office or a government institution in accordance with chapter V, regulation 2.2 of the SOLAS. Even though the current hydrographer offered hydrographic services, it was not well recognised there was no specific authority of government or authorisation for the hydrographic office. However, the current hydrographer sat within the SA navy in the SA National Defence Force, and the hydrographer had been providing the service since 1954. The Defence Review of 2014 had recommended that the Republic’s international hydrographic and nautical charting obligations, responsibilities and liabilities must be brought into law, so that it may comply with regulation 2.2, and that such national legislation must provide for the appointment of the SA Navy hydrographer as the national hydrographer. 

Objects of the Bill

The bill provides for the establishment of the Hydrographic Office; provides for the safety of navigation in the exclusive economic zone and the internal waters of the Republic; ensures that hydrographic surveying was done in accordance with the requirements of internationally accepted specifications and standards; provides for the appointment of the hydrographer as the national hydrographer; and provides for the powers and duties of the hydrographer.

Clause by Clause Overview

Clause 3: Establishment of the Hydrographic Office, whose seat is determined by the Chief of the Navy, in consultation with the hydrographer.

Clause 4: Provides for the functions of the Hydrographic Office, which includes among others the collection and compilation of hydrographic data and provides services to users in the manner most suitable for the purpose of aiding navigation.

Clause 5: Provides for the appointments and conditions of service, such that the Chief of the Navy must appoint the hydrographer as the head of the Hydrographic Office.

Clause 6: Provides for the control and management of the Hydrographic Office -- that the hydrographer must govern and control the Hydrographic Office in accordance with the Act and the Defence Act, and ensure that the functions of the Hydrographic Office are carried out efficiently and effectively.

Clause 7: Provides for the powers and duties of the hydrographer, and that the hydrographer must, before exercising any power or performing any duty, give reasonable notice of the intention to exercise the power or perform the duty to the owner or occupier of the land, obtain the necessary consent from the owner or occupier of the land, enclosed place or reserve on land.

Clause 8: Provides for the submission of hydrographic data. Any person who is in possession of any information that poses a navigational danger must communicate and submit such information to the hydrographer as soon as reasonably practical to do so. Any person who fails to communicate or submit information is guilty of an offence and liable.

Clause 9: Provides for survey marks. Any flag erected in terms of this Act must be constructed or erected under the supervision of the hydrographer, and in the prescribed manner. The owner of any property damaged by the placing of a flag is entitled to compensation by the Department for such damage.

Clause 10: Provides for archiving. The Chief of the Navy may determine minimum standards in respect of the general management of the information of the Hydrographic Office. The access to, and transfer and control of, the nautical publications are covered under clause 10.

Clause 11: Provides for the copyright. The copyright of all nautical publications and nautical charts, and any other information produced by the Hydrographic Office, vests in the state. The designated hydrographer is responsible for the administration and management of such copyright.

Clause 12: Provides for the limitation of civil liability. Neither the Hydrographic Office nor an employee of the Hydrographic Office is liable, except in the case of gross negligence or a willful act or omission on the part of that employee or any person.

Clause 13: Provides for the Hydrographic Office funding. The costs and expenses connected with the administration of the affairs and the execution of the functions of the Hydrographic Office must be defrayed from monies appropriated by Parliament to the Department for that purpose.

Clause 14: Provides for a cooperation agreement. This came as a result of the consultation with the Ministry of Transport, which saw the need for a clause talking about cooperation. The Secretary for Defence and the Director-General of the Department of Transport must enter into and maintain the cooperation agreement in respect of the administration of matters of joint interest that may arise from the execution of this Act.

Clause 15: Provides for the annual report. The hydrographer must annually, within 90 days after the end of the financial year, submit a report in respect of the execution of the functions of the Hydrographic Office.

Clause 16: Provides for the Regulations that the Minister may make.

Clause 17: Provides for the transitional arrangements. The person who immediately before the commencement of this Act performed the functions of the hydrographer continues to do so, and is deemed to have been appointed in terms of section 5.

Clause 18: Provides for the short title and commencement.

The Department had made a lot of consultation and development of the bill until a certification was granted as a sign of satisfaction. It had followed all due process. The bill was submitted in Parliament and was now before the Committee.

Discussion

Mr. S Esau (DA) asked if the formulation of this legislation had also been compared to other counties that had hydrographic offices. Though the hydrographic office was not an official office, services were still being rendered so what were the budgetary/financial implications, given the fact that the Committee was concerned about the cost implications of the DOD, where other services had had to be compromised to make things work. Regarding the limitation of civil liability, were these issues so dangerous -- that is, the nautical publication and the nautical chart? On the cooperation agreement, was this cooperation limited to the Department of Transport (DOT) only, or were other agencies to be considered, because the legislation spoke only of the DOT? On the submission of the hydrographic data, there was a fine imposed if somebody withholds information -- did the public at large know about the implication of the withholding information? The item of notice and public awareness was not being addressed. The archiving would fall under the determination of the Archives Act that already existed, and there was no highlighting of that in the bill.

Ms B Dambuza (ANC) observed that only the Government had been involved in the consultations, and therefore there was need for the DOD to consult the public also concerning the bill. It would be important for the Department to make available the documents after the consultations so that the Committee may determine if the areas where issues had been identified had eventually been covered in the bill. Since most of the income was from publications, would the Hydrographic Office funding be enough to provide the services?  Since the Minister was going to make the regulations, would those also include the regulations about how to spend on areas other than those provided? Would there be any new career opportunities for young people?

DOD’s response

Captain Theo Stokes, Hydrographer, SA Navy, replied that funding the Office’s annual budget was in the region of R1 million per annum, and R1 to R1.2 million for the next two to three years, which focused mainly on the membership of the International Hydrographic Office which was situated in Monaco. The balance of the funds was for operating costs. The office sold products not directly to the public, but via value added resellers operated by the Council, and this generated income that went directly into government revenue. On an annual basis, the office generated between R4 million and R10 million, depending on the demand for the services of the Navy Hydrographic Office. At this stage, the office does not have access to the funding, as it goes directly to the V7 account at National Treasury. All the funding was taken care of within the South African Navy, and a portion of the Navy budget was allocated to the Hydrographic Office.

On the civil liability of the hydrographer, a navigation chart was a legal document that stood in a court of law. If the hydrographer were to receive information from a third party about the existence of a rock in a place, for example, then the hydrographer would be held liable if ship ran aground in the area. If the hydrographer used every available channel to notify the mariners of the potential danger, then he would not be held liable.

Regarding career opportunities, the Navy recruits within its own ranks to train the hydrographic surveyors and the hydrographic recorders. There were still opportunities to expose hydrography to the youth and create more opportunities. There were civilians in the hydrographic office who were responsible for the marine photography, and this was also an avenue to be explored to expose the youth to hydrography and create more opportunities.

Col Leon Dernandt, Legal Advisor, Department of Defence, replied that they had compared the South African hydrography system to the international systems by benchmarking with other offices, especially the United Kingdom (UK). In all the hydrographic offices benchmarked, the hydrographic services were within the Navy. However, no other country on operated solely in the Navy, but also in cooperation with other government departments, and particularly the transport department. That was why the DOD had incorporated the provision for cooperation with the Department of Transport (DOT) in the bill. Any other small organisations that were interested with the hydrographic services fell under the DOT, so whatever agreement the DOD made with the DOT would be in cooperation with the other small organisations. The DOT was very satisfied with the inclusion of the cooperation clause, as opposed to being excluded.

Adv T Ramcharan, Director: Legal Advice, Department of Defence, concerning the archiving, and said that according to the Defence Act, the DOD archives were the official Defence repository of the South African National Archives. This meant means the DOD was solely responsible for archiving, maintaining and controlling its documents. There were very stringent policies on documentation management in respect of record administration and archiving.

Captain Stokes replied that all hydrographic source data dating back to 1910 was archived in the South African Navy in a climate-controlled area, in accordance with international standards.

The Chairperson asked if the data was digitised.

Captain Stokes replied that it was all digitised, and according to international standards they must have the analogue version and digitised one and that is backed up every day.

Mr Esau said that the last time the Committee visited the office, they found the antenna had all been stolen, and the last one had also been stolen at the station itself, as well as the one on the mountain. He wondered how the office was monitoring the vessels at sea and commercial resorts. Were they using the internet satellite?

Captain Stokes replied that for safety, the hydrographer had his area of responsibility. If a lighthouse was not functioning, then the hydrographer transmitted the information via Cape Town radio, which sends via their transmitters which were supported by Telkom. If it was outside South Africa’s territorial waters, it was sent via satellite.

Lieutenant Mashego said that the Department had consulted with stakeholders and state organs which had connections with private entities, and which all supported the bill. During consultations they had consulted clusters such as employment sectors, economic sectors, Phakisa and the SA Maritime Safety Authority (SAMSA), and knew the bill would be published for public consultations.

Ms Dambuza asked that since there was cooperation with various departments, what measures would be put in place when other departments fail to attend meeting or failed to submit the required reports in time. It could be very difficult, since there were a lot of stakeholders in service delivery. What would happen in the case of where the stakeholders/departments did not cooperate?

Col Leon replied that in the case of this bill, there were only two players -- the DOD and DOT -- and basically the Navy was self-sufficient and was not overly reliant on the DOT when it came to hydrographic services. The reason for clause 14 had been because of the international standards where they had some authority, and also to ensure that the two maintain relations. The act was there as a guide, and it was there to ensure that all the parties’ interests were satisfied.

Mr Esau commended the Hydrographic Office for being proactive and in generating their own revenue, which was more than what they required. This meant they were self-sustainable, so did they need the extra money or did they want it to go directly into the office?

Captain Stokes replied that the production capability was maintained on software which was very expensive to maintain on an annual basis, because there were updates which needed to be done regularly, and licence fees were required. The Office relied on the State Information Technology Agency (SITA) to pay the fees for them. However, there were challenges in paying for them, and SITA was actually asking the Navy to support with the costs, which were approximately R1 million and may increase. There was also a training facility which required licences, and the Office was about to upgrade the facility as part of the Navy renewal programme, which would definitely increase the costs.

Mr Esau said that given the explanation, the R1.2 million did not seem to be a true reflection of the cost. It should be established how much was paid in full for the different licence fees, and how much was subsidised by the DOD and other departments, so that the cost of the whole office may be known, and whether the R4 to R10 million income generated was enough to self-sustain it.

Captain Stikes answered that the money generated, if made available, would be enough.

The Chairperson raised a concern about the term “any person who withholds information” in clause 16, as it referred to any member of the public. Ordinary citizens were unaware of hydrography, and therefore there was need to create awareness among them. As to an offence, the criminal law would then take care of that. In terms of clause 14, apart from DOT, maybe the DOD needed to think of including the South African Police Service (SAPS).

The Chairperson said the Committee should raise concern about the reimbursement of the revenue collected that went to Treasury, and put it as another matter of negotiation between the DOD and Treasury. The Hydrographic Office had the ability to empower women, youth and the community and therefore they needed to move forward accordingly. He foresaw the Committee finishing dealing with the bill in the current term, and it becoming an act of Parliament.

The meeting was adjourned.