Civil Aviation A/B & Economic Regulation of Transport Bill: deliberations

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Transport

02 March 2021
Chairperson: Mr M Zwane (ANC)
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Meeting Summary

Video: Portfolio Committee on Transport, [NA], 02 March 2021

In a virtual meeting, the Committee conducted clause-by-clause deliberations on the Civil Aviation Amendment Bill and accepted Clauses 24 to 52.

On the Economic Regulation on Transport Bill, the Committee deliberated on Schedule 1 that dealt with consequential amendments to the National Ports Act, Airports Company Act, Air Traffic and Navigation Services Act, National Land Transport Act, and SANRAL and National Roads Act. The Department agreed to return and clarify certain concerns raised by Members for two of these Acts. The Committee deliberated on Schedule 2 Transitional Provisions.

In answer to why there were no amendments to the Cross-Border Road Transport Act, the Department explained that the consolidation of economic regulators is a phased approach and Phase 1 does not cover the Cross-Border Road Transport Agency.

The Committee agreed to continue deliberations on both Bills on 5 March 2021.

Meeting report

Civil Aviation Amendment Bill: deliberations
The Committee continued its clause-by-clause deliberations on the Bill.

Adv Alma Nel, Committee Content Advisor, said that the deliberations would continue from Clause 24 of the Amendment Bill. She summarised the clause first and then allowed for discussion:

Clause 24 amending section 99 of the Act
The Committee accepted the clause.

Clause 25 amending section 103 of the Act
Mr L McDonald (ANC) said he did not see the need to amend this section. There are a lot of threats to South African citizens in aviation, especially related to terrorism, that rely heavily on international standards. For example, in the United States after 9/11 attacks, a number of regulations were put in place in airports to boost security and safety in airports. South Africa needs to comply with international standards of safety in airports.

Adv Nel asked DoT to provide further clarity on the clause.

Adv Adam Masombuka, Chief Director: Legal Services, DoT, said that Clause 25 amends section 103 of the Act, removing the provision that confers certain aviation security powers which have already been bestowed to a single aviation authority in section 73 of the Act. Those amendments are already covered under section 73 of the same Act. The segregation of aviation security powers was highlighted during the International Civil Aviation Organization Security Audit, which was conducted to verify the aviation security functions of the Republic.

Mr McDonald said he did not hear Adv Masombuka’s explanation clearly due to connectivity issues. He would take the issue under advisement, as he believes that more security means better safety.

Adv Masombuka referred Mr McDonald to section 73 of the Act.

Mr McDonald agreed to read the section again for better understanding.

Mr L Mangcu (ANC) suggested that Section 73 be turned to ensure that Mr McDonald understands to his satisfaction.

Mr McDonald said that he had double checked Section 73 and saw that his question was covered in that section.

The Committee accepted clause 25.

Clause 26 amending 104 of the Act
Mr McDonald asked for clarity from Department on appointment of any suitable person by the Director. He asked who the phrase “any person” referred to.

Adv Masombuka replied that the phrase means that the Director-General would designate an official of the Department to sit on a board if the DG is not going to personally sit. The amendment is aligning the Act with the latest developments by making appropriate current references to departments because the names of the departments change every now and then. DoT is avoiding spelling them out in the Act because once a department name changes, there would a need for another amendment to the Act to fix that. This is why they rather refer to the "department that is responsible for transportation” instead of “Department of Transport”.

Mr Mangcu was concerned if the “any person” referred to in the amendment would go through the same kind of security clearance as a Director-General would.

Adv Masombuka replied that in terms of the Public Service Act, senior officials of the Department are required to go through security clearance, meaning that the “any person” referred to would also have to go through security clearance at the same level as the Director-General.

Mr Mangcu suggested that the provision in the amendment does not make it obvious to everyone that it is referring to a senior manager, as it just refers to “any person”. He suggested that it would be clearer if that change could be made. It also does not clarify that the person would go through security clearance.

Ms F Khumalo (ANC) agreed with Mr Mangcu’s suggestion.

Adv Nel said that the drafters of the Amendment Bill would need to look at the suggestion by Mr Mangcu about security clearance and appointment of senior staff. Not all Senior Management Service (SMS) members go through the same level of security clearance as not all of them will be working with Cabinet members or the most senior staff. It might just be the necessary expertise and security clearance that the drafters might add.

The Committee accepted Clause 26.

Clause 27 amending Section 108 of the Act
The Committee accepted Clause 27.

Clause 28 amending section 110 of the Act
Mr McDonald asked why there needs to be a removal of the phrase “in consultation with” in the section.

Adv Masombuka replied that the Commissioner is a representative of the Civil Aviation Authority and cannot consult himself/herself. The wording states that “the commissioner must, in consultation with the person in charge of a designated aerodrome”. The wording is very clear, as the Commissioner is the senior employee of the Civil Aviation Authority.

The Committee accepted Clause 28.

Clause 29 amending Section 111 of the Act
The Committee accepted the clause.

Clause 30 amending Section 112 of the Act
The Committee accepted the clause.

Clause 31 amending Heading of Chapter 7 of the Act
The Committee accepted the clause.

Clause 32 amending section 113 of the Act
Mr McDonald said that he had a concern that the police could be allowed to enter an airplane without a search warrant even if it is for safety and security purposes. Doing so would be unconstitutional. He asked for further clarity in order to change his mind.

Mr Mangcu said that both proposed deletions and amendments do not seem to have any material effect. He wanted to know the reason from the Department but added that generally the amendments do not look harmful at all. He was always of the view that the Act already had a law that allows police to raid airplanes without having to provide a search warrant, especially when it is a safety and security measure. This is because if a safety and security emergency arises, it would be impossible for an inspector to get a warrant, and the criminals would take advantage. He asked for the reason for the removal of the wording in the clause as he did not see it to having a harmful or negative effect.

Adv Masombuka replied that DoT deemed it unnecessary to keep the word “reasonable" because the action that must be taken by the inspector must be imminent. If the inspector is not acting instantly, then the purpose of the search might be defeated. It would be time-consuming to apply for a search warrant for an airplane. It would be easy for the offenders to capitalize on such a situation.

Mr McDonald said that he had no problem with searching without a warrant but rather the seizure of documents. Seizure of documents and related information does not form part of the inspection.

Mr Mangcu said that aviation is a totally different environment from a household and pleaded with Mr McDonald to leave the amendment as it is, because it is reasonable in ensuring the safety and security of the people. He appreciated the explanation from Adv Masombuka.

Mr McDonald removed his objection and agreed with Mr Mangcu.

Mr Frankie Jenkins, Senior Parliamentary Advisor, said that he understood Mr McDonald’s concern for privacy. It is important to understand that when dealing with licensed premises, the right to privacy operating within that space as already been eroded.

The Committee accepted Clause 32.

Clause 33 repealing Section 114 of the Act
Adv Masombuka said that the provisions of this section were never implemented in practice, and when considered in light of the existing practice, they are impractical in some respect, especially when they indicate that non-compliance constitutes an offence. This implies that the criminal process must be invoked.

The Committee accepted Clause 33.

Clause 34 amending Section 116 of the Act
Adv Masombuka said that this clause clarifies the powers of the inspectors on the prohibition of certain activities. The restrictions on the time periods in which a prohibition may be issued is impractical because a prohibition may be as long as the cause for it still exists.

Mr Mangcu asked if this means that the prohibition could be limitless. He asked for an example for clarity.

Mr Levers Mabaso, Acting Chief Director: Aviation Safety, Security, Environment and Search and Rescue, DoT, said that the prohibition would last long if the cause has not been rectified. For example, if a driver's licence expires, a person will not be allowed to drive until the licence is renewed.

The Committee accepted Clause 34.

Clause 35 to 48
The Committee went through each of these clauses and accepted them with no discussion.

Clause 49 amending Section 131 in the Act
Mr C Hunsinger (DA) asked if it is Annexure 2 of the Convention which is used as the anchor reference of the “appropriate authority” of the Republic in section 49. He asked if the Annexure was available for the Committee to look at.

Adv Nel said that she did not have the Annexure close by.

Mr Hunsinger said that it would be appropriate for the Annexure available for reference purposes.

Mr Mabaso explained that the reference to “appropriate authority” for air marshalling is because some countries choose to leave it to the entity responsible for aviation security regulation, which means that it would be the responsibility of the national army or another appropriate entity. Others may use another organization to control the security of the air space. It is a different set up for different nations, hence no particular reference to a single entity has been made in the clause.

Mr Hunsinger asked for the definitions to be read aloud in order to give more insight.

Mr Mabaso read the definitions as requested.

Mr Hunsinger was satisfied.

Clause 50 amending Section 132 of the Act
The Committee accepted the clause.

Clause 51 amending section 133 of the Act
This dealt with offences and penalties on board aircraft and the Committee accepted the clause.

Mr Mangcu asked where COVID-19 regulations would dealt with in the Amendment Bill, especially in dealing with offences and penalties on board aircraft.

Adv Masombuka replied that the issuing of state of disaster directions are provided in the Disaster Management Act and the rules and regulations are provided within that Act.

Mr Mangcu said that the people in charge of an aircraft derive their rules from the Civil Aviation Act more than any other Act. It would make sense to include COVID-19 or emergency rules within the Act itself rather than only in the Disaster Management Act.

Adv Nel replied that when the Disaster Management Act regulations are gazetted, there are amendments specific to air travel, which means they make provision for the COVID-19 regulations required.

Mr McDonald asked if the prison sentence of a "maximum of 20 years without the option of a fine" in subsection 3 would also apply if a person deliberately avoids an instruction from an airhostess. 

Adv Masombuka replied that the answer is available in subsection 4 and refers to people who commit the offences mentioned in subsection 2 and 3. One would have to read subsection 2 and 3 to understand the kinds of offences.

Mr McDonald was satisfied with the response

Clause 52 amending Section 140 of the Act
The Committee accepted the clause.

The Chairperson ended the deliberations on the Bill which would be resumed on 5 March.

Economic Regulation on Transport Bill: deliberations
Adv Nel explained that the Committee has to deliberate on Schedule 1 and 2. For Schedule 1, she would go back and forth between the different pieces of legislation that have consequential amendments due to the Economic Regulation on Transport Bill.

Schedule 1
Adv Nel noted that the first amendment is to the definition of “regulator” in the National Ports Act. She summarised this amendment for the Committee.

Ms Raksha Haricharan, State Law Advisor, explained that in Schedule 1, there needs to be an underlining of certain sentences, which will be included in the A-list (Committee proposed amendments).

As Adv Nel went through Schedule 1, Ms Haricharan noted  the specific sentences that should be underlined.

The Committee accepted all the amendments to the National Ports Act, Airports Company Act and Air Traffic and Navigation Services Act in Schedule 1.

Adv Nel summarized all the proposed amendments to the National Land Transport Act in Schedule 1.

Mr Mangcu asked why the deletion of paragraph (c) in Section 21(1) of the National Land Transport Act has not also been proposed for paragraph (d) because it deals with the fare structure that becomes the function of the Transport Economic Regulator.

Mr Moeketsi Sikhudo, Project Manager: Single Transport Economic Regulator, DOT, agreed that it was perhaps an oversight and the Department would deliberate on its removal.

Ms Haricharan also asked for time to deliberate on the removal of paragraph (d).

Mr Hunsinger said that it might be crucial to look also at section 8 as it has implications on a wider spectrum. He suggested that the section needs to be removed.

The Chairperson agreed to allow DoT to reflect on the matter and return to the Committee with answers.

Adv Nel summarized the amendments to the SANRAL and National Roads Act in Schedule 1.

Mr Mangcu said that in Section 27 of the SANRAL and National Roads Act there is the proposed removal of determination by the Minister, but he understands that it is the purview of the Minister to make regulations. It appears that the amendment is saying that the function goes through the Regulator and not the Minister. He wanted to know if it is the responsibility of the Minister to issue regulations on matters such as tolls.

Mr Hunsinger supported Mr Mangcu’s question and said he would be interested in the Department's response. He added that the Department is moving towards a regime where all determinations for the economic regulation of transport is at arm’s length and is independent in this new structure.

Mr Sikhudo agreed that indeed the Department is moving towards an independent oversight of economic regulation which is now consolidated under the Transport Economic Regulator. The principle and the idea are to move all functions of economic regulation located in various entities to the Economic Regulator and ensure that oversight is provided from an independent point of view.

The Chairperson asked Mr Sikhudo to clarify what the role of the Minister becomes.

Mr Hunsinger asked about the extent to which the Economic Regulator is independent, and the role played by the Minister in the independent oversight of economic regulation. He wanted to understand the extent to which a Minister can interfere in economic regulation, whether in a good or bad way.

Mr Hunsinger said that the underlining was not being done in the correct manner. Underlining sections of the Bill that is under development or amendment has a particular status and may be read and understood in a particular way, as it may seem unfair to the public participation process.

Ms Haricharan apologised about the underlining and explained that the Bill had a printing error. The wording she indicated as underlined should have been included in the Bill. She added that it will be included in the A-List as it is a printing error that occurred.

Mr Mangcu asked who has the legal authority to issue regulations.

Mr Sikhudo said that he does not have the authority to respond to the question about who has authority to issue regulations. He said that as far as they know it is the Minister who has that power. He added that perhaps a legal expert could provide that answer. The general principle of the Bill on price determination is that the nitty-gritty of how price control for a specific sector would be undertaken would be embedded in the regulations.

Adv Nel explained that a two-fold gazetted publication system is created in the Bill. Section 4 speaks to the general regulations and indicates which of those are to be made by the Minister, such as determinations. Chapter 3 Part A on Price Regulation is linked to the tolls. Price regulation in the Bill is not chaired by the Minister, as it is chaired by the Regulator. The Regulator would sit with the agency (SANRAL) to look at their proposed tolls. 

Mr Hunsinger said that there is a lot that needs to be cleared up – more than the Committee may realise. In the sections that were discussed, there are three references to levels of consultation that are allowed, but the decision-making authority in terms of a firm direction to follow after the consultation is not clear. First, there is a level of consultation that can or may or should happen between the Minister and the Regulator. Then there is also the other level of consultation between the Regulator and the particular entity (SANRAL), but consultation is not given any supportive outcome. He proposed that the Department looks at this in terms of alignment of current functioning because it should not be more complicated but rather less complicated. He is excited about this piece of legislation because it could also address a lot of red tape. Real action must be spelt out in terms of processes and procedures to be followed.

Ms Haricharan asked the Committee for some time to deliberate on the matters raised and promised to come back with answers.

Mr Mangcu asked who has the legal authority to issue regulations. If that question is answered, then all other questions raised by Mr Hunsinger would be answered.

Adv Nel said that the principal authority is with the Minister to issue regulations. There are issues where this would differ as the Department had indicated, especially considering price regulation. It would be of assistance if the Department does indeed get back to the Committee on this.

The Chairperson wanted to know the purpose of the deliberations.

Adv Nel said that the purpose of the deliberations is to receive the Committee’s inputs on the proposed amendments. There will be another clause-by-clause later on, but these deliberations are meant to allow any further clarity that Members may need from the Department, State Law Advisors and the Legal Services in order for a draft A-List to be created. When all these issues are addressed, the A-List will seek to supplement the Bill if an item is not included in the Bill as introduced. There will be a final look at the Bill through the A-List in a clause-by-clause deliberation.

The Chairperson asked if Members can still make inputs on the Bill.

Adv Nel replied that they can make inputs.

The Chairperson asked that DoT clarify the regulations and return to the Committee at a later stage with the answers.

Schedule 2 of the Bill
Adv Nel summarized the amendments which focused on transitional provisions.

The Committee accepted the amendments.

Adv Nel summarized the amendments in Item 2 Continuation of tariffs in force at effective date in Schedule 2.

Mr Mangcu asked if there are any amendments for the Cross-Border Road Transport Act.

Mr Sikhudo replied that the Bill in its entirety is focused on Phase 1. DoT presented the different phases of the consolidation of the economic regulators into one. Phase 1 plans to start to consolidate institutions into the Transport Economic Regulator by using the Ports Regulator as a nucleus. The second part is to incorporate the regulating committee. From an economic regulation perspective, the Bill primarily focuses on tariff determination. The Bill is guided by those principles.

Mr Mangcu was not satisfied with the response from Mr Sikhudo. He wanted to know how the National Land Transport Act (NLTA) is involved, as it is much closer to the CBRTA. He did not understand the rationale for not picking up the amendments that would affect the CBRTA. Was this an oversight by the Department or was he missing the entire picture.

Mr Sikhudo replied that it was not an oversight from the Department to exclude certain areas. It is a well thought-through process with the anticipation that from the effective dates they would want to focus on certain areas, one of which dealt with the determination of prices for the areas selected, including SANRAL. The focus on SANRAL is on the oversight of economic regulation, specifically related to the current determination in the National Land Transport Act. In the aviation space a focus committee or institutional arrangement that focuses on economic regulation is the Regulation Committee which functions well and provides oversight for ATNS as well as ACSA.The introduction of a new economic regulation framework and oversight for the rail sector will take much time and resources from the Economic Regulator that the Department is setting up. The aim of this Bill is to have this institution functioning well before incorporating other areas.

The Committee agreed to continue deliberations on 5 March 2021.

Committee minutes
The Committee adopted the minutes of 17, 19, 23, 24 February 2021.

The Chairperson noted that the Committee needs to make time to give feedback on the Moloto Corridor as they had promised the people of KwaMhlanga.

Mr T Mabhena (DA) asked to add to the agenda of the Moloto Corridor the CEO matter, as the Chairperson had said to the Committee that he would have a meeting with the Minister on the matter.

The meeting was adjourned.

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