Economic Regulation of Transport Bill: deliberations; National Land Transport Amendment Bill remitted bill: President’s reservation; Transport BRRR

Meeting report

The Chairperson accepted an apology from Mr K Sithole (IFP).

Deliberations on the Economic Regulation of Transport (ERT) Bill
The Chairperson invited Ms Raksha Haricharan, state law advisor, to present new proposed changes to the ERT Bill [B1-2020].

Ms Haricharan went through the proposed changes. These included minor changes and a major change to Clause 47, which would govern the appointment of the Transport Economic Council. The changes to this clause would provide for the Committee to conduct interviews and prepare a shortlist of between nine and eleven candidates from which the Minister of Transport would appoint the Council members.

Mr Hunsinger (DA) moved for adoption of the proposed changes.

Mr L McDonald (ANC) seconded Mr Hunsinger’s motion.

Ms N Nolutshungu (EFF) abstained from the motion on behalf of her party.

The President’s reservations in respect of clause 7 of the National Land Transport Amendment (NLTA) Bill
The NTLA Bill had been referred back to the National Assembly by the President for reconsideration in terms of section 79(1) of the Constitution.

Ms Noluthando Mpikashe, parliamentary legal advisor, said that the President was concerned that Clause 7(a) would confer on national government the power to assume provincial and local government functions related to transport contracts, while Clause 7(b) would similarly confer on provincial governments the power to assume local government functions. The President was concerned that the rigidity of Clauses 7(h) and (m) would preclude the Minister of Transport and provincial governments from assigning public transport functions to municipalities, irrespective of circumstances. He was concerned that Clauses 7(j), (k) and (l) would preclude the assignment of powers to municipalities in terms of Section 156(4) of the Constitution.

Ms Mpikashe recalled that during public hearings on the Bill, the City of Cape Town (CoCT) had made a submission raising questions about the division of responsibilities between spheres of government contemplated in Clause 7. CoCT had argued that the terms according to which local and national government could take over responsibility for transport service contracts from provinces were not aligned with Section 156(1) and Schedule 4(B) of the Constitution. The Committee had requested a legal opinion on the matter from the parliamentary legal advisor. According to this opinion the clause in question was intended to give effect to Section 154(1), according to which provinces to monitor and strengthen the capacity of municipalities, and was therefore not unconstitutional. Moreover, public transport and municipal transport were listed in Schedule 4, making them functional areas of concurrent national and provincial legislative competence. This opinion had been supported by the state law advisor and accepted by the Committee.

In summary the President’s reservations related to:

(i) the criteria set by the Minister that municipalities would have to meet before concluding contracts,
(ii) the usurpation by provinces of municipalities’ power to conclude public transport contracts, and
(iii) the conferral of a wide range of powers on national government to conclude public transport contracts.

Ms Mpikashe said that the opinion of the parliamentary legal advisor was that the criteria were no different than the norms and standards that the Constitutional Court had found in 2014 did not amount to the usurpation of the power that was guided by them. She suggested that the word ‘criteria’ in the Bill could be replaced with ‘norms and standards.’ She confirmed that the intention of Clause 7 was to assist municipalities that did not have the capacity to conclude public transport contracts. She advised the Committee to consult with the Department of Transport (DoT) on the best policy to address the situation where a municipality did not have the resources or capacity to conclude a public transport contract.

Discussion
Mr Hunsinger recalled that he had agreed to disagree with the Committee’s acceptance of the parliamentary legal advisor’s opinion after the earlier public hearings. The President’s reaction to the Bill was therefore no surprise and it was in fact a bit embarrassing that it had been returned to the Committee. It should serve as a warning that the Committee should not rush through legislation. On the other hand he also welcomed it as an opportunity to deal with the relationships of a wide variety of public transport stakeholders, such as taxis, rail, buses, Uber, metered taxis, long-distance taxis, skorokoros and others. These relationships had not been adequately covered in the principal Act in 2009, which had been rushed through in order to approve the bus rapid transport (BRT) system in time for the 2010 Soccer World Cup.

Mr McDonald said it was disappointing that the Committee’s concerns had not been heard but whatever the case, the Committee should take the opportunity to rework the Bill and deliver something better to the President.

Ms Mpikashe pointed out that the Committee was restricted to changing the specific clause that the President had raised concerns about. If it wanted to make more comprehensive changes, a new amendment bill would have to be introduced.

Ms Nolutshungu agreed that the Committee should engage thoroughly on the NLTA Bill with regard to universal transport, especially for people with disabilities.

Mr L Mangcu (ANC) requested that the support staff compile a memo of all the Committee’s previous deliberations on Clause 7.

Budgetary Review and Recommendation Report: Finalisation of observations and recommendations
Adv Alma Nel, Content Advisor, Portfolio Committee on Transport, presented the draft Budgetary Review and Recommendation Report (BRRR).

Mr Hunsinger expressed appreciation for the excellent report. It represented the work of the Committee excellently and was one of the best reports he had seen in his seven years as a Member of the Committee. He moved for its adoption.

Mr McDonald agreed with Mr Hunsinger’s assessment of the report. He explained that the clarity the Committee had sought about the calibration aircraft was when the aircraft that was currently being leased from an overseas company would be replaced by one leased or bought from a South African company. He seconded the motion for adoption of the report.

Committee business
Minutes of the Committee’s meetings on 7 September and 9, 10, 11 November 2021 were adopted without changes.

Ms Valerie Carelse, Committee Secretary, asked the Committee to confirm the dates for a planned stakeholder engagement session and an oversight visit.

The Chairperson suggested that the stakeholder engagement take place in the evening on 24 November 2021, and that perhaps the oversight visit could be rescheduled so that it could be more than one day.

Mr Mangcu appealed for the planned oversight visit to go ahead but suggested deferring the stakeholder engagement as the processing of legislation was a more urgent matter.

Mr Hunsinger supported Mr Mangcu’s proposal.

Mr T Mabhena (DA) objected strongly to the postponement of the oversight visit to Mpumalanga. The Committee’s job was not only to process legislation but also to go out and speak to the people. The Committee had been promising to visit since March, but something more important than the people of Mpumalanga always seemed to come up. Over 20 people had died on the R573 since March. There was a double standard between the Committee’s response to taxi violence in Cape Town and the carnage on the R573.

Mr I Seitlholo (DA) supported Mr Mabhena’s sentiments. The problems on the R573 had been on the table for years. Would it take the death of a Member before the Committee prioritised it?

The Chairperson noted Mr Mabhena’s concerns, but maintained that the changes to the programme had been necessitated by the local government elections.

Mr Mabhena abstained from approving the proposed Committee programme. He also observed that the Transport Committee meetings were not being streamed on Youtube, unlike all the other portfolio committees. The Youtube streams were of great assistance in reporting back to constituents.

Ms Carelse observed that the Youtube streams were managed by parliamentary communications services, who were represented in the meeting.

The Chairperson noted the matter and requested that it be put on the agenda for the next meeting.

The meeting was adjourned.