Civil Aviation A/B & Economic Regulation of Transport Bill: deliberations; Consideration and adoption of minutes

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Transport

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

The Committee continued clause-by-clause deliberations on the Civil Aviation Amendment Bill and the Economic Regulation of Transport Bill.

The Committee accepted the A-list of changes to the Civil Aviation Amendment Bill, which included provisions for the Committee to conduct interviews for the members of the Aviation Safety Investigation Board, the conduct of inquests and handling of investigation reports, the preferential creditor status of the Civil Aviation Authority with respect to money collected on its behalf and the security clearance on an Acting Commissioner of Civil Aviation.

The Committee considered a response from the Department of Transport to questions about the Economic Regulation of Transport Bill raised in an earlier meeting. These questions related to the incorporation of the Cross-Border Road Transport Agency into the single regulator, as well as the status of the employees of the Ports Regulator of South Africa immediately after the transition to the single regulator. The Department argued that it would be impractical at this point to amend the Bill to incorporate the Cross-Border Road Transport Agency in the way the committee wanted.

The Committee was unsatisfied with the Department’s response. Members drew attention to the fact that the savings projected by the Department as a result of establishing a single regulator had been based on a model in which the Agency was incorporated into the single regulator. The status of the Ports Regulator employees was discussed at length and the Department agreed to provide a comprehensive response the next week.

Meeting report

The Chairperson opened the virtual meeting, welcoming all the Members and the Committee support staff to the meeting.

The Chairperson acknowledged apologies from Mr I Seitlholo (DA), Mr B Yabo (ANC), Mr K Sithole (IFP) and Minister of Transport, Mr Fikile Mbalula. He asked Adv. Frank Jenkins, Senior parliamentary legal advisor, to take the Committee through the A-list of changes to the Civil Aviation Amendment Bill.

Deliberations on the Civil Aviation Amendment Bill
Adv. Alma Nel, Committee Content Advisor, explained that the A-list contained changes introduced after the second round of public hearings.

Adv. Jenkins read through the A-list. In Clause one, a definition of “aerodrome manager” would replace the definition of “airport manager”; a definition of “air service” would be inserted, and a definition of “designated aerodrome” would replace the definition of “designated airport.” In Clause eight, a paragraph would be inserted to provide for the Portfolio Committee to conduct interviews and recommend seven candidates to the Minister of Transport for the Aviation Safety Investigation Board (ASIB). In the same clause, there would be paragraphs inserted to provide for Parliament to receive the incident investigation reports of the ASIB and to require an inquest to be conducted and the next of kin informed in the case of a fatal accident.

Mr L Mangcu (ANC) requested clarity on where exactly this paragraph would be inserted.

Adv. Jenkins explained that it would be inserted into the new section 52, which was contained in Clause eight of the Bill.

He then continued reading through the A-list. In Clause 13, a paragraph would be inserted to grant the Civil Aviation Authority (CAA) preferential creditor status with regard to fees and levies collected on its behalf. In Clause 20, a paragraph would be inserted to require an Acting Commissioner of Civil Aviation to have the same top-secret security clearance as a permanent Commissioner. In Clause 21, amendments would be made to require the Commissioner’s performance agreement to be published on the CAA website. In Schedule one, consequential amendments to several other Acts would be made.

The A-list also contained other minor textual and consequential amendments to the Bill.

The Committee accepted the changes in the A-list.

Ms Valerie Carelse, Secretary, Portfolio Committee on Transport, explained that the next step would be to consider the Bill after the printers had incorporated the A-list changes (the B-Bill).

Mr C Hunsinger (DA) was concerned that the Committee was currently processing three different Bills at the same time; this was unprecedented. He requested that they be dealt with one at a time and that an overview of the steps be taken after the B-Bill was approved.

Mr Mangcu did not think it was always that easy to deal with Bills one at a time. He asked for clarity on Mr Hunsinger’s suggestion.

Mr L McDonald (ANC) observed that 2021 was an election year, which meant that the calendar had been condensed to allow Members to spend more time in their constituencies. He felt that the Committee should simply forge ahead, working late at night if necessary. It should not be said that the Committee did not work hard.

The Chairperson said that the Committee should be conscious of its workload. He thanked the Committee for its hard work on the Bill.

The Committee decided to consider the B-Bill in the following week.

Deliberations on the Economic Regulation of Transport Bill
The Chairperson observed that the A-list for the Bill was not ready yet but there were some minor issues to discuss with the Department of Transport (DoT).

Adv. Nel recalled that the Department needed to clarify certain clauses and address the Committee’s concerns that the transitional arrangements described in the schedules focused too exclusively on the Ports Regulator of South Africa (PRSA).

Mr Moeketsi Sikhudo, Director: Single Transport Economic Regulator, DoT, recalled that the Committee had expressed concern that the transitional arrangements did not talk to other regulators that were anticipated to be incorporated into the single Regulator and had wondered whether the omission of the Cross-Border Road Transport Agency (C-BRTA), for instance, had been an oversight. He assured the Committee that the drafters of the Bill were very experienced. The legal advice that had shaped the Bill had come from experts. The design of the Bill had been carefully thought out in accordance with the phased introduction of the Regulator. The focus of the first phase was price determination and the establishment of a review system, using PRSA as a nucleus.

He explained that rewriting Schedules one and two to incorporate the C-BRTA would require extensive rewriting because the body of the Bill would also have to be amended. The regulatory impact assessment, the business case and the options analysis had been done on the basis of the transitional arrangements currently in the Bill, and any changes to these would require extensive consultation. There good reasons for the current phased approach. The Bill was the first of its kind in the transport sector and it was therefore inevitable that certain issues would come up as the Bill was implemented. He implored the Committee to reconsider its request for the inclusion of clauses referring specifically to the C-BRTA and other regulatory institutions. He suggested the inclusion of provisions for reviewing the Regulator after two years.

Adv. Adam Masombuka, Chief Director: Legal Services, DoT, agreed that incorporating the C-BRTA at this stage would be a mammoth task. He understood that the economic regulatory functions of the C-BRTA would be incorporated into the single Regulator at a later stage.

Mr Mangcu said it was strange the Mr Sikhudo spoke about the credentials of the drafters of the Bill, as these had never been in question. It seemed almost as if the Department was questioning the Committee’s credentials. It was also difficult to follow his statement without a written presentation or document. He reminded the Department that the C-BRTA had been raised as an issue for a very specific reason: the Department had included its budget when it calculated that the Regulator would effect a net saving over the existing separate regulatory entities.

Mr McDonald agreed with Mr Mangcu. The presentation seemed to cast aspersions on the Committee. The Bill had been presented as a way of reducing the cost of regulation. It was also intended to create a single regulator to replace all other regulators. If other regulatory entities were going to continue operating, what was the point of the Bill? The Department’s explanation contained no credible evidence and its submission was not acceptable.

The Chairperson asked the Committee not to dwell on the tone of the Department’s submission but to focus on its substance.

Adv. Nel recalled Mr Mangcu’s question on whether PRSA employees were employed under the Public Service Act and whether they were linked to the Public Service Bargaining Council.

Mr Sikhudo replied that the Department had established that its employees were employed under the Labour Relations Act, not the Public Service Act. He added that the Department could share a document explaining its response if the committee requested it.

Mr Mangcu was unsatisfied that the document had not been presented. The Committee should not be required to dig information out of the Department. The implications of his question about the legal status of PRSA employees had not been addressed, but it could be that the document covered them. This forced the Committee to be speculative and it was not fair.

Mr Hunsinger added that the incorporation of the PRSA and the regulatory functions of the C-BRTA were one of the most promising and attractive elements of the single regulator. The issue should be considered thoroughly. The Committee should not approve a shell of a single regulator with other regulators still operating.

Mr McDonald said if the document had been received timeously it would have been easier to understand the Department’s point. He noted that the Committee had made a decision that the Department was asking it to go back on without providing credible evidence.

Ms Raksha Haricharan, State Law Advisor, noted the Committee’s points about the C-BRTA, but reiterated that changing the Bill in accord with the Committee’s wishes would involve substantial amendments. She recalled that the Bill had not included the C-BRTA when it was initially introduced and approved by Cabinet.

The Chairperson asked Adv. Nel to recap the Committee’s concerns about the inclusion of other regulatory entities such as the C-BRTA.

Adv. Nel recalled that the issue had come up in Schedule two, where appeals were dealt with. These parts of the Bill only discussed the handling of appeals before the PRSA. The Committee had pointed out that the Bill could include timed clauses, which would not come into effect on the date that the Bill was signed into law but only at a specific later date, and it had requested that timed clauses providing for the incorporation of the C-BRTA into the single regulator be included in the Bill. She also recalled that the budget of the C-BRTA had been the most significant factor in the Department’s projected savings and that the Committee had raised concerns that the C-BRTA would only be brought under the single regulator in the last phase of the transition. The Committee would need to weigh up whether to insist on changing the Bill or whether to follow the Department’s suggestion of dealing with the later phases of the transition in an amendment Bill.

Mr Mangcu noted that the Committee had raised the question of the C-BRTA budget several weeks prior but the Department had not responded to it. The capacity of the Committee to process matters had been undermined. It seemed like the Department expected the Committee simply to forget about the issue and he took serious exception to this. The Committee supported the establishment of a single transport economic regulator, but it would not simply rubber-stamp the Bill.

Ms Haricharan drew attention to National Assembly Rule 286(4), according to which the Committee would need to obtain the permission of the National Assembly to extend the subject of the Bill to incorporate the C-BRTA.

The Chairperson asked for Ms Haricharan’s opinion on Mr Mangcu’s question about the future of collective agreements between the State and the Public Service Bargaining Council when employees of the PRSA became employees of the Regulator.

Adv. Nel suggested that the necessity of the references to the Public Service Act in these parts of Schedule two might need to be reconsidered, especially since the Department had indicated that PRSA employees did not fall under the Public Service Act. Were any PRSA employees linked to the Government Employees Pension Fund (GEPF)?

Ms Haricharan first responded to Adv. Nel’s query concerning the Public Service Act. She said that the Department had addressed the question, earlier, on the morning of the meeting day. She elaborated that the Department had indicated that it applied to employees who fell under the Ports Regulator, as it stands. The Department was making provisions for transitional arrangements once the Economic Regulation of Transport Bill comes into effect.

Concerning the agreement in place between the Public Service Bargaining Council and the State, she reminded the Committee that this point had been discussed in a meeting that was held on 05 March 2021. She referred the Members to item 3(3) subsection 3 of Schedule two of the transitional provisions, and asked the Department to further elaborate on the provision, so as to provide clarity to the Committee.

Mr Sikhudo confirmed that PRSA employees were not governed through the Public Service Act. He was not sure whether they were linked to the GEPF, however. Clarity from the PRSA should be sought on this matter before deciding on whether these clauses were necessary. He observed that according 6(4)(a)(ii) of Schedule two anyone who was a member of the GEPF before the transition would remain a member after it and would be entitled to benefits according to certain provisions of the Public Service Act.

The Chairperson asked if the Department needed time to consider these matters.

Mr Sikhudo replied that it did. The Department had spent most of its time preparing the response to the C-BRTA matter.

Mr Masombuka agreed. He said that the Department would need a week to look into it.

The Chairperson added that the Department still needed to look into Clauses 21, 23, 76 and 69.

Mr Hunsinger reiterated that there was a need for more time to consider Bills. The DA supported the Bill under consideration but there were issues that needed to be dealt with. It was impossible for the Committee to do justice to three different Bills at the same time.

Ms N Nolutshungu (EFF) asked why the National Assembly rules had not been raised an issue earlier, given that the core objective of the Bill was to establish a single economic regulator.

The Chairperson suggested that this question might not be able to be answered in the time remaining. He appreciated that the Department asked honestly for the time it needed. He asked the Department to invite one of the drafters of the legislation to attend the next meeting.

Consideration and adoption of committee minutes
Minutes of the committee’s meetings on 02 and 03 March 2021 were considered and adopted without changes.

The meeting was adjourned.
 

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