AARTO Amendment Bill: Verification of A and B versions

Meeting report

The Chairperson apologised for the delay in opening the meeting due to the absence of a quorum. She invited Adv Mpikashe to take the Committee through the amendments effected to the Bill.

Brief by the Parliamentary Legal Advisor on the verification of A and B Lists
Adv Noluthando Mpikashe, Legal Advisor: Parliament, took the Committee through amendments effected to the Bill. The amendments were effected in accordance with concerns raised and inputs provided by Members in the previous meeting. Three issues had been raised about the new clause introducing Chapter IVA into the Bill. Members requested that Section 29A(6)(a) should be revised because they felt that it discriminated against office bearers. It was also proposed that “agency” should be substituted by “authority”. It was suggested that Section 29A(6)(a)(i) be deleted. However, after discussion with the Road Traffic Infringement Agency (RTIA), they reached a conclusion that this should remain as it was aimed at ensuring that the Tribunal remained independent and no one who had acquired a financial interest should be involved. No challenges about corruption should be arise. In the previous meeting, RTIA had proposed that the Minister should be empowered to appoint acting Tribunal members in terms of Section 29E. This was revised in light of that proposal. The Minister could appoint an acting Tribunal member if a Tribunal member vacated office until the President filled the vacancy in terms of Section 29E(3). There was also a lacuna in terms of resignation of a Tribunal member. The lacuna had been closed by revising Section 29D, dealing with conditions of appointment and term of office. Additional guidance was provided with regard to resignation of the Tribunal chairperson in that the chairperson might resign but remained a Tribunal member. A month’s notice of resignation ought to be given to the Minister.

Adv Mpikashe noted that the Memorandum had been adjusted or aligned to changes made. All minor changes as per previous discussion were also addressed.

Discussion
The Chairperson suggested that Members should discuss changes prior to consideration of the Bill clause by clause.

Mr M De Freitas (DA) said that Section 29F was lacking in various respect because it failed to state the time limit as it pertains to an acting Tribunal member appointed by the Minister. For how long could such a member perform certain duties in an acting capacity? Section 29D failed to clarify whether a member who had served a notice to resign would continue to serve the Tribunal until the end of the term or whether resignation should have an immediate effect. These issues were not explicit in the clause. The law should not work on the basis of assumptions.

Mr T Mbanza (ANC) commented that Section 29F was not clear. The problem was that it looked as if the decision to become an acting Tribunal member rested with the member and not with the Minister. It was not clear who had power to appoint.

Mr L Ramatlakane (ANC) apologised that he was absent in the previous meeting and needed clarity on certain issues raised in that meeting that had resulted in major changes to Sections 29A, 29D and 29E. He asked, if the Tribunal chairperson resigned, why should remain a Tribunal member? He wanted to know what issues there were that could compel the chairperson to resign and still serve as a member. In his view, if the chairperson resigned, he should leave. He asked why the section dealing with appointing Tribunal members created a dual authority to appoint: The Minister and the President could appoint. He felt that only the President should have authority to appoint and the Minister could merely make a recommendation to the President on who should be appointed. Furthermore, the law should be crafted in such a manner that would not allow Tribunal members to resign leaving a lack of quorum. The Tribunal consisted of nine members. What was the quorum? Was it 50%? The quorum should be made clear. He was of the view that the clause empowering both the Minister and President to appoint should be scrapped.

Mr Japh Chuwe, RTIA CEO, replied that the Tribunal consisted of the chairperson and eight other members appointed by the President, and not the Minister.

Mr Ramatlakane reiterated that the Minister should make a recommendation to the President to appoint. A good and clear law should be made.

Mr de Freitas agreed with this recommendation. However, he disagreed with Mr Ramatlakane’s view on the chairperson resigning and having to leave the Tribunal given that there could be circumstances that might force the chairperson to resign such as health problems. Resignation should be restricted to acting in the capacity of chairperson and not in the capacity of member.

Mr Ramatlakane replied that there was a clause dealing with the question of resigning due to illness.

Referring to dual authority, Adv Mpikashe replied that the Bill required the President to fill vacancies within 90 days. A member appoint in an acting capacity by the Minister could not do so beyond 90 days. In stating that the chairperson could resign as the chairperson but remain as a member, the legal team looked at laws regulating other tribunals and found that there was a similar clause. The reason the chairperson could continue to be a Tribunal member was due to the chairperson resigning voluntarily and not due to incompetence or lacking skills as a chairperson.

Mr Mbanza agreed.

Mr de Freitas disagreed with Mr Ramatlakane’s proposal to scrap the clause that he claimed created dual authorities. Scrapping this would create a legal gap.

Mr M Sibande (ANC) disagreed with the resignation due to incompetence. He reminded Members that the chairperson would be appointed, followed internal advertisement, and those candidates who felt that they were capable of leading the Tribunal would apply. He dismissed the argument that the chairperson could resign due to a lack of skills. How could a person without skills be appointed if recruitment processes had been adhered to? He felt that Members were going back to square one if they were to engage in discussing minor issues at the time the Committee was convened to consider the Bill clause by clause. He proposed that they should consider the Bill clause by clause. Should a problem be identified in a particular clause, that problem should be raised for discussion or clarity.

The Chairperson disagreed. A clause by clause consideration would follow after the new amendments had been discussed.

Adv Mpikashe referred to the resignation of chairperson as both the chairperson and as a member and stated that this was a matter that the legal team would leave to the Committee to decide.

Mr Chuwe welcomed the comments from Members on the new amendments. He noted that his office had interacted with the Parliamentary legal team and agreed on amendments as per previous discussion. It was, in the previous meeting, indicated that the Bill was challenged by inconsistency and some gaps. The Bill was revisited to close those gaps and to ensure consistency in the creation of certain administrative powers. In this way, the acting appointment by the Minister was seen as necessary to avoid the vacuum. There could be negative impact on the functions of the Tribunal should the President be delayed in appointing members. An individual appointed by the Minister could not serve for more than three months. There was no intention to create a dual authority for appointment. Due to the unintended result of dual authority, the clause would be revised – and not scrapped – to give authority to the President to fill a vacancy and the Minister – as the person in charge of the Department – to fill the vacancy on a temporary basis to avoid a vacuum and ensure a proper functioning of the Tribunal.

The Chairperson agreed and remarked that the law must be clear on appointment.

The State Law Advisor advised Members that the Bill did not create dual authority. In principle, the law ought to be clear and be drafted in an unambiguous manner. The law could not be said to be ambiguous if a person could read a provision and understand what it conveyed. The clause in question empowered the Minister to appoint an acting Member who could perform in that capacity whilst awaiting the President to appoint. An acting Tribunal member could not serve more than three months. The clause was therefore clear. He did not see the reason why the clause should be amended.

Mr G Radebe (ANC) suggested that Section 29D should be removed and that when the chairperson resigned, he/she could not continue to serve as a Tribunal member.

Mr Ramatlakane said that the quorum should be made clear. He was concerned about a situation where members could resign and there was no quorum to take a decision. Only the President should be given authority to appoint but that the Minister could appoint an individual in an acting capacity for a period of three months.

Mr Chuwe commented that certain provisions were amended as consequential results of the amendments effected.

Mr Ramatlakane felt that Section 29F dealing with an acting Tribunal member should be deleted.

The Chairperson said that Members should consider the Bill clause by clause having in mind the amendments proposed.

Consideration of the Portfolio Committee amendments to the Bill [B38A-2015]
The Chairperson read out the proposed amendments agreed to by Members in previous discussion.

Clause 1
Accepted by the Committee.

Clause 2
Accepted by the Committee.

New Clauses, amending section 11 of Act 46 of 1998 and repealing section 12 of Act 46 of 1998
Accepted by the Committee.

New Clauses amending sections 17 and 18 of Act 46 of 1998 as amended by Act 72 of 2002.
Accepted by the Committee.

Clause 5
Accepted by the Committee.

Clause 6
Accepted by the Committee.

Clause 8
Accepted by the Committee.

New Clause, amending sections 25 and 29 of Act 46 of 1998
Accepted by the Committee.

Chapter IVA inserting in the Bill Sections 29A to 29K, with amendments
Sub-Sections 29D(3)-(4) were deleted
Section 29F was deleted.

Clause 9
Accepted by the Committee

Clause 10 was deleted.
The Committee accepted the deletion.

New Clause substituting section 32 of Act 46 of 1998
Accepted by the Committee.

New Clause amending section 34 of Act 46 of 1998.
Accepted by the Committee.

Clause 12
Accepted by the Committee.

Long title
Accepted by the Committee.

The Chairperson noted that the changes would be incorporated into the Bill that afternoon and the final version to the Bill would be sent to Members. She proposed that, irrespective of seeing the final version, Members should consider adoption of the Committee Report on the Bill.

Mr C Hunsinger (DA) asked how it was possible to consider the Committee Report on the Bill without having the final version of the Bill.

The Chairperson replied that there were only minor amendments and this should not stop Members considering the Committee Report. She proceeded to read out the report. After reading it, she asked members one by one if they support the Bill as expressed in the Committee Report.

Mr Sibande moved to adoption.

Mr Mpanza seconded.

Mr de Freitas said that he should be given an opportunity to express his view on the Bill as whole.

Mr Hunsinger abstained from moving for adoption.

Mr Radebe was of the view that the Committee Report on the Bill should be considered once all parties had expressed their views on the Bill. Members should know whether there were differing views from the parties. Should there be differing views, Members should first engage with them before the report could be adopted. However, the ANC had moved for adoption.

Mr Sibande commented that it did not make sense, after a lot of work and time had been invested in the Bill and working together with all parties, to say that parties should be given an opportunity to express their view on the Bill. All parties had participated in the drafting of the Bill. What was really stopping them from adopting the Bill and Committee Report on the Bill?

Mr de Freitas replied that the Bill would first need to be discussed in the DA caucus.

The Chairperson agreed that the Committee Report should be put on hold until all the issues from all the political parties were discussed. Members should bear in mind that there were other Bills that needed to be considered and therefore they should put this Bill to rest as soon as possible.

Mr Hunsinger agreed. He commented that there were the PRASA issues that needed to be considered. These issues could be resolved through reviewing certain policies. He raised his concern that there was no framework on how PRASA and Transnet should operate.

Mr de Freitas echoed Mr Hunsinger’s comments and noted that some of these issues were arising from the State Capture Report.

Mr Sibande commented that the Committee was convened to consider the AARTO Amendment Bill and Committee Report on the Bill and not other matters. Members should be patient because the State Capture Report would be engaged with and there was no way the Committee could run from it.

The Chairperson said that the State Capture Report would be looked at from the PRASA perspective. There were individuals who were looking at the Report and would be briefing the Committee on those issues concerning PRASA.

The Committee Support Staff noted that a 90-page report had been drafted containing issues involving PRASA, as per the State Capture Report. The report covers issues raised by Members in their interaction with PRASA since 2004.

The meeting was adjourned.