Economic Regulation of Transport Bill, National Road Traffic A/B & National Land Transport A/B: Negotiating Mandates

Meeting report

The Chairperson said that the main purpose of the meeting was to consider the negotiating mandates on the National Land Transport Amendment Bill [B7-2016], the National Road Traffic Amendment Bill [B7-2020], and the Economic Regulation of Transport Bill [B1-2020].

National Land Transport Amendment Bill [B7-2016]

The Chairperson said the National Land Transport Amendment Bill had been returned to Parliament by the President because of reservations regarding the constitutionality of some provisions, particularly Clause 7(b)(17). There were also concerns regarding the constitutionality around the clauses related to the powers vested in the municipalities. As a result, the Bill had been remitted back to Parliament.

On 26 March, an advert had been published calling for written submissions on the Bill, with a deadline of 24 April. Stakeholders had been informed that in terms of Rule 209 of Parliament, comments were to be limited to the amendments which addressed the reservations of the President. The Committee had received oral submissions on 31 May. On 20 September, the Department briefed the Committee on its response to the oral and written submissions.
The Chairperson indicated that the provincial mandates would be tabled before the Committee.
Mr Hlupheka Mtileni, Committee Secretary, said that the mandates would not be read out, as a document that reflected the overview of the mandates had been developed.
The Chairperson asked the Committee Secretary to clarify the voting process for the Bill, as a Section 76 Bill.
Mr Mtileni responded that five provinces needed to be represented. Voting would be done clause-by-clause. The proposal for amendments had to be supported by a minimum of five provinces. Members would vote as a province, not as individuals.
The Chairperson asked for clarity in instances where there were two Members from one province.
Mr M Rayi (ANC, Eastern Cape) said he had not been a part of the process when the three bills were presented. He understood that before voting clause-by-clause, the Committee needed to get a response from the Department regarding the negotiating mandates. Following this, the Committee would deliberate on the submissions of the provinces and the response provided by the Department. Only at that point could the vote be done.
The Chairperson confirmed that the process outlined by Mr Rayi was correct. Following this process, the negotiating mandates would be sent back to the provinces to review the Department’s response.
Mr T Brauteseth (DA, Kwa-Zulu Natal) agreed with Mr Rayi regarding the procedure. He felt it was a good idea to circulate the negotiating mandates to the provinces, to allow them to consider their sister legislatures' inputs. This could enable provinces to become aware of issues they may not have picked up. The matrix prepared by the staff highlighted a number of amendments from the provinces.
The Chairperson requested that the Committee Secretary take the Committee through the overview.
Mr Mtileni indicated that Eastern Cape had voted in favour of the Bill. The Eastern Cape was mandated to negotiate in favour of the Bill.

The Free State Portfolio Committee on Infrastructure, Roads Transport and Human Settlement supported the Bill, subject to certain amendments.
The Gauteng Provincial Legislature supported the principle and detail of the Bill, and voted in its favour.
The KwaZulu-Natal Portfolio Committee on Transport agreed to mandate their support of the Bill.
Limpopo voted in favour of the Bill.
The Mpumalanga Portfolio Committee on Public Works, Roads and Transport, Community Safety and Security were in favour of the Bill, without the proposed amendments.
The Northern Cape supported the Bill.
The North West Provincial Legislature was in favour of the Bill.
The Western Cape Standing Committee on Mobility supported the Bill, subject to certain amendments.
The Chairperson said the negotiating mandates of the provinces showed positivity in terms of the negotiation.
Mr Rayi said that some provinces supported the Bill, subject to proposed amendments (Free State and Western Cape). He requested clarity from the Legal Advisor on whether these amendments were new amendments, outside of the confined areas in terms of the President’s reservations. The Free State’s amendments did not specify particular clauses or sections. He wanted to confirm that these were not new amendments.
Mr Brauteseth agreed with Mr Rayi. The preamble to the table of suggested amendments said, “The suggested or proposed amendments highlighted are identical to those which the Department of Transport addressed the Select Committee on during a meeting on 20 September 2023.” On the Schedule, under Section 3.4, under the Free State’s amendments, there were no comments from the Department, but under the Western Cape’s amendments the Department had provided comments. The Department had to respond to the proposed amendments. Therefore, the meeting was a noting exercise regarding the negotiating mandates, which should be circulated to the provinces before the Committee returned to consider the final mandates.
Mr Rayi asked the legal advisor to respond on whether the amendments were restricted to the President’s reservations.
Ms Phumelele Ngema, Parliamentary Legal Advisor, responded that the Committee content advisor was best suited to speak to the submissions and proposed amendments. When considering the President’s reservations, the processes were explained. Clause 7 had been the main reservation, and therefore the negotiating mandates were meant to address Clause 7. In the previous submissions received by the Committee, there had been a case of adding provisions linked or related to Clause 7, but had not been highlighted in the President’s reservations. The content advisor was best able to respond to this issue.
The meeting should speak to the issues raised by the negotiating mandates, and if clarity is needed, the legal advisors and the Department should be available to respond. The call for final mandates should speak to what the provincial legislatures proposed, and whether it would give effect to another Bill or not. In this instance, the Bill had been remitted and as a result, the process was constrained. The best way to deal with this, was to highlight the issues related to Clause 7 and the proposed amendments, and for the Members to consider if they were satisfied with the BF version that the House had corrected. The Committee was dealing with the version that considered the reservations of the President. This meant that the Committee was looking into the already amended Bill (F version) and because of the restrictions, the Committee could not go beyond what had already been indicated.
Mr Rayi suggested that the Committee populate the template with the amendments proposed by the provinces and the Department’s response to the amendments. It would be improper for the Committee to comment on the proposed amendments before receiving the Department’s response, as its response may change the view of the Committee. He suggested that the Committee note the proposed amendments by the provinces and once the Department responded, the Committee could deliberate on the proposed amendments and the Department’s response. After this, the Committee could vote clause-by-clause and submit it to the provinces for consideration for the final mandates.
Mr Brauteseth agreed with this proposal.
The Chairperson requested that the Content Advisor table the Bill from the Department, and thereafter the process suggested by Mr Rayi would be followed.
Dr Anneke Clark, Committee Content Advisor, said that Ms Ngema had repeated the advice given in the meeting dated 20 September. Rule 209 has been highlighted. The Committee was dealing with a Bill that had been remitted after reservations by the President. She highlighted Rule 209(2): “The Committee must confine itself to the President’s reservations.” Having considered the negotiating mandates, the Committee had to report whether it agreed with the amended Bill from the National Assembly (NA) or recommended the rejection of the Bill. The mandates had to rise to the level that the Committee would be inclined to completely reject the Bill. There was limited space for the Committee to recommend amendments to the version of the Bill it was dealing with. The Committee would have to report on whether it agreed with the Bill or whether it recommended rejection.
The Chairperson said that the Committee should reflect on 3.2. His interpretation of this was that the Committee had to decide whether to accept or reject the amendments that had been referred from the NA. He read Rule 209(2) for clarity, and stated that 209(2)(b) said: “may confer with the corresponding Assembly Committee on any matter concerning the President’s reservations,” and that the Committee must report if it agreed with the amendments referred by the NA or whether to recommend the rejection of the Bill. He requested input from Members.
Mr Rayi confirmed that the Committee understood the rules that had been read. Even if the NCOP rejected or agreed to what had been referred by the NA, this had to be informed by the sentiments of the provinces. The Committee could not decide by itself, as it was a Section 76 Bill. The process of checking the mandates with the provinces had to be done first.
Mr M Dangor (ANC, Gauteng) agreed with this process.
Dr Clark referred to 3.4 in the compiled document. Some of the mandates received contained amendments that were identical to the amendments that the Department had responded to in the meeting of 20 September. The inputs highlighted in the document were not new inputs, but rather highlighted the Department’s previous response. Two provincial legislatures proposed amendments. In summary, the Free State Provincial Legislature’s proposed amendments did not relate to the President’s reservations. Its proposed amendments appeared to be a commentary on the National Road Traffic Amendment Bill.
The Free State’s input was as follows:
1) South Africans or foreigners saturating the taxi industry who were operating without licences and number plates, these operators had the potential of fuelling violence in the taxi industry and must be prohibited.
2) Trucks or private car owners that utilise or allow hikers within their vehicles, a regulatory system needs to be put in place to regulate such practices.
3) The Bill should make provisions to ensure that driving schools are registered and comply with the regulations of the Bill.
4) The municipal regulating body should work hand-in-hand with the province.
5) The Bill should clearly state the powers of municipalities regarding taxi operating licences.
6) The Bill should make provision for one town or association to avoid taxi violence.
7) Pirating taxis should be impounded, including those that operate without number plates. The Bill should make provisions for taxis that do not use the country’s number plates, not to ferry scholars to schools because this might put the lives of children at risk.
8) The Bill should make a provision for government officials doing taxi businesses to be stopped, and operating licences should be paid annually, instead of every six months.  
Dr Clark said that it was her understanding that where the Department was not ready to provide a response to particular mandates, it would be allowed further opportunity to respond. The Committee needed to find out from the Department if they agreed that the Free State’s proposed amendments did not relate to the President’s reservations. If there was agreement between the Department and the Committee, the Department did not need to provide a response, outside of indicating that it fell outside of the President’s reservations.
The Chairperson requested input from the Department.
Mr Muzi Simelane, Director: Policy, Legislation & Planning Coordination, DoT, agreed that the Free State’s submissions were outside of the President’s reservations. The Department indicated that they had removed Clause 7 from the Bill.
Ms Ngema added that the main issue the President had was with Section 11 of the existing Act, which dealt with the responsibility of the spheres of government and confirmed that the Department had removed this section from the Bill. Rule 209 meant that because the amendments proposed were unrelated to the President’s reservations, they did not require a response. The Committee was constrained by the President’s reservations.
Adv Johannes Makgatho, Chief Director: Road Regulation, DoT, said that the comments made by the Free State highlighted the National Land Transport Amendment Bill and the National Road Traffic Amendment Bill. Regarding the deliberations expected from the Department, it had requested time to respond in writing to the submissions made by the provincial mandates.
The Chairperson asked if the Committee should allow the Content Advisor to go through the Western Cape’s submission, and then deal with the submissions as one.
Mr Brauteseth said that this issue had been highlighted in his previous statement. Input was needed from the Department before the Committee was able to move forward. He noted that this fell outside the President’s concerns, but it was necessary for the formal document to reflect this. He felt that the Committee was unprepared for the meeting, and that a document was needed that compiled all of the responses and submissions to be sent back to the provinces.
Mr Rayi agreed with Mr Brauteseth that the Committee needed to follow the proper procedures. When meeting next, the Committee could consider the submissions made and the response of the Department. This would avoid an unnecessary repeat. He suggested that the Committee should not consider the Western Cape’s submission at this time. Deliberations could rather be done once the Department had responded to the submissions. This would allow the Committee and the Department to formulate complete opinions and responses before engaging.
The Chairperson noted that the Committee would allow the Department to respond to the submissions made. This would also apply to the other two bills being discussed. He requested that the Committee allow the legal advisors to table the mandates for the other two bills for procedural purposes.
Mr Dangor asked if the Department had briefed all the provinces about the narrow scope of amendments. If all the Departments had been briefed on the scope of their proposals, why had they included other matters?
The Chairperson said that the DoT had briefed the provinces. He confirmed that the Department and legal advisors would be given the opportunity to comment and respond so that the final mandates reflected a thorough process.
He was concerned about the lapsing of the Bill. He requested information on this from Ms Ngema, once the Committee had dealt with the other bills on the agenda.
National Road Traffic Amendment Bill [B7-2020]

The Chairperson asked the Committee Secretary to table the negotiating mandate. Following this, the decision the Committee had taken would kick in.

The Eastern Cape voted in favour of the Bill, with proposed amendments.

The Free State Portfolio Committee on Public Works, Infrastructure, Roads and Transport, and Human Settlement voted in favour of the Bill, with proposed amendments.

The Gauteng Provincial Legislature supported the Bill, subject to amendments.

The KwaZulu-Natal Portfolio Committee on Transport supported the Bill.

Limpopo voted in favour of the Bill, with the proposed amendments.

The Mpumalanga Portfolio Committee on Public Works, Roads and Transport, Community Safety and Security voted in favour of the Bill.

The Northern Cape supported the Bill.

The North-West Provincial Legislature voted in favour of the Bill.

The Western Cape Standing Committee on Mobility voted in favour of the Bill, with amendments.

The Chairperson noted this. The Committee would follow its decision to allow the Department to respond before further engagement. He indicated that at this time, the amendments proposed by provinces would not be considered until the Department and legal advisors had had an opportunity to review and respond to the submissions.

The Committee agreed.

Economic Regulation of Transport Bill [B1-2020]

The Chairperson invited the Committee Secretary to share the negotiating mandates from the provinces.
 
The Eastern Cape voted in favour of the Bill, with proposed amendments.

The Free State did not submit any negotiating mandate.

The Chairperson asked for clarity on this from a member representing the Free State.

Ms M Moshodi (ANC, Free State) said that the province had indicated that she should not serve as a permanent delegate to brief the Committee. She was not clear on the decision taken.

Ms Marette Basson, Free State Parliamentary Liaison Officer, said that the Free State had not done public hearings on the Bill, but had published the Bill for comments. No comments had been received and therefore the Committee had decided to note the Bill and had not submitted a negotiating mandate.

The Gauteng Provincial Legislature supported the Bill, subject to amendments.

The KwaZulu-Natal Portfolio Committee on Transport supported the Bill, with considerations of certain comments.

Limpopo supported the Bill, subject to amendments.

The Mpumalanga Portfolio Committee on Public Works, Roads and Transport, Community Safety and Security was in favour of the Bill.

The North West Provincial Legislature voted in favour of the Bill.

The Western Cape Standing Committee on Mobility voted in favour of the Bill, subject to amendments.

The Chairperson noted that all of the provinces were in support of the Bill, subject to amendments. The Department and legal advisors would have the opportunity to respond to the submissions.

Ms Moshodi referred to the submission of the Free State. She asked for her name to be removed as a permanent delegate, because the province did not allow her to brief them. The province could not say that she had not briefed them. This needed to be corrected.

The Chairperson noted this.

Ms Moshodi said she had informed the Chairperson about this issue.

The Chairperson noted this, and would reflect this in the final mandate.

Mr Brauteseth was concerned about this issue with the Free State. Ms Moshodi was right to be concerned. He was mindful of passing sound law and of the precedents set in court regarding public participation. He found it strange that the Free State opened the door to challenges. Case law indicated that laws had been unconstitutional or invalid due to a lack of public participation. The Free State could be opening the door to these types of challenges, which would be completely unproductive. The Free State should justify its decision not to conduct public hearings, when all the other provinces had done so. He was concerned that the courts would look at this unfavourably. The Committee should communicate this and request a response from the Free State Legislature. He was also concerned about why the Free State had blocked the normal procedure of a permanent delegate briefing. It seemed as if they were not interested in the Bill.

Mr Rayi agreed with Mr Brauteseth that this issue could affect the whole Bill. There were examples of Bills that the President rejected due to procedural defects. He suggested that the Chairperson write to the Chairperson of the National Council of Provinces (NCOP) to make them aware of the issue raised by Ms Moshodi, and that the public hearings process had not been adhered to. He suggested that the Chairperson write to the Parliamentary Legal Office for advice on the matter, and how it would affect the legislation process. Could the Free State’s lack of public hearings make the Bill unconstitutional?

The Chairperson noted this. He asked if the Committee was in agreement.

The Committee agreed with the suggestions made by Mr Rayi.

The Chairperson said that the Department and the legal advisors would be given time to respond to the submissions.

Committee programme

The Chairperson requested that Ms Ngema clarify the issue regarding the lapsing of the Bill. This would assist the Committee in terms of its programme. The final mandate was meant to be dealt with on 22 November.

The Committee Secretary confirmed this. He indicated that the programme would have to be completely changed due to what had been decided in the meeting.

The Chairperson asked if the legal advisors and the Department would be able to respond to the submission within a week. This would enable the revision of the programme to take this into account.

He asked about the lapsing of the bills. Was this a concern? When would the bills lapse?

Ms Ngema highlighted Joint Rule 219, which referred to the announcement of the progress of bills, and NCOP Rule 238, which referred to the lapsing and resumption of bills. NCOP Rule 238(1) stated that the Bill lapsed at the last sitting of the House during its annual session. Her understanding was that when the House rises at the end of the year, the Bill would lapse, but may be reinstated on the order paper during the next ensuing session. If the Bill did lapse, there was a process for it to be reinstated. Joint Rule 219 stated that the Secretary to Parliament wanted a decision to revive a Bill at whatever stage it may have stopped. It was then reinstated and must start from that point. This meant that the process would start from where it had stopped and not start from scratch.

Ms Ngema noted the requests made regarding the three bills, and said that the legal advisors would address them. There might be time constraints, but the legal advisors would do their best to complete their responses within a week.

The Chairperson asked the Department if a week was sufficient for them to submit the required responses.

Mr Dangor said that from a programming perspective, bills were tabled as important or less important. It depended on how the bills were identified whether or not the process would be continued this term or if it would be left until the next term. If the bills were identified as priority bills, they would go forward.

Mr Mvikeli Ngcamu, Chief Director, DoT, confirmed that a week was sufficient for the Department to make its submission.

The Chairperson noted this. The proposals made by the provinces were clearly related to inputs from the public hearings. As a result, the Committee could cross-reference the proposals. He noted the time constraints in submitting responses, and the sentiments around priority bills. When was the Committee’s last sitting?

Mr Dangor said there were meetings scheduled until December. He would report back following the programming committee meeting the next day.

The Chairperson noted the agreement that within a week’s time, the Department and legal advisors would provide the required input. The deadline for submission was 22 November. He encouraged the Department and legal advisors to engage with each other to assist the process in moving forward. He requested that the Department send its responses to the provinces.

He noted that all of the provinces were supporting the bills. In such instances, the lapsing of the bills should be avoided.

Mr Dangor recommended that the National Assembly (NA) and NCOP programming committees should harmonise their programming going forward, especially regarding legislation and bills. The provinces should also be informed of the outcomes of such a meeting so that they may consider it in their own programming.

The Committee Secretary reminded Members that a revised programme had been sent to the House Chairperson. Would the Department be able to make their submission before the following Wednesday to allow the Committee to move the meetings accordingly?

Ms Ngema indicated that she would not be able to make the submission next Wednesday. She would be able to have the response by next Friday.

The Chairperson noted this. He would communicate with the Committee about rescheduling the meeting.

Committee minutes

The Committee's minutes dated 7 June, 6 September, 20 September, 27 September, 11 October, 18 October and 25 October were considered.

The minutes were adopted.

Closing remarks

The Chairperson thanked the Members for their attendance.

He noted the support of the provinces for the Bills. He highlighted the decision that the Department and the legal advisors had been given time to formulate a response to the proposals of the provinces before the final mandate was done. He noted the issue of the Free State’s lack of public hearings in terms of the Economic Regulation of Transport Bill, and assured Members that this would be looked into.

He said that there would be a revision to the programme. The Committee would work to ensure the finalisation of the bills.

The meeting was adjourned.