Metrorail crisis; PRASA investigation resolution; National Land Transport Amendment Bill disagreement

Meeting report

Chairperson opening remarks
The Chairperson informed Members that although the agenda was to deliberate on the National Land Transport Amendment Bill, she had invited the Metrorail Regional Manager to update them on the reopening the Central line scheduled for 21 February 2018. She invited Members to make comments.

PRASA and reopening the Central line
Mr C Hunsinger (DA) remarked that the 13 February meeting with PRASA had ended without achieving the desired results because PRASA interim board members and executives had to catch the last flight. The PRASA interim board had not yet submitted its financial report nor responded to the questions of Members during the meetings of 6 and 13 February 2018. Also, it had not yet addressed the corruption charges against PRASA officials and had not provided contingency plans or turnaround steps to open the Metrorail Central line. Further, two of the PRASA board members had not appeared before the Committee: Mr Xolile George and the representative from National Treasury.

Mr L Ramatlakane (ANC) agreed with Mr Hunsinger that the PRASA interim board had outstanding issues that it needed to address. He recalled that the Committee had wanted to initiate an investigation of the PRASA old board but the investigation had been suspended. He suggested that due to the concerns of #UniteBehind and United Commuters Voice (UCV), the outstanding issues identified by Mr Hunsinger and those raised by the Committee in 2017, an investigation should be instituted against PRASA based on Rule 227(c). The Committee also needed to invite the officials to account for the allegations made by #UniteBehind. The PRASA interim board had not taken responsibility for reopening Central Line on 21 February 2018 but had asked the Metrorail Regional Manager to defend and put forward reasons the Central line had to be reopened only on 21 February 2018. He supported the Chairperson’s proposal to invite the Metrorail Regional Manager to give an update after which the Committee would decide on the next step.

The Chairperson noted that there was a proposal by Mr Ramatlakane to institute an investigation against PRASA based on Rule 227(c).

Mr M Sibande (ANC) agreed with Mr Ramatlakane’s proposal that the Committee employ Rule 227(c) to investigate the activities at PRASA. He was concerned that UCV had not provided any documents during its brief. Also #UniteBehind had introduced other issues during its briefing that was not part of the documents submitted. For instance the allegation about the militarisation of PRASA was not substantiated by any document. He suggested that the Committee request documents from #UniteBehind and UCV. He observed that there was lack of communication between the PRASA executive and its interim board and suggested that the Committee investigate the reasons for the lack of communication.

Ms S Xego (ANC) supported the need for the Committee to receive a quick update on the reopening the Central line before the scheduled opening date. She added that the Committee must look at the documents and facts before inviting the parties alleged to be involved to account before the Committee.

The Chairperson said that the Committee had received a lot of information through whistleblower documents but remarked that the terms of reference would be decided by Members. The Committee had wanted to investigate the board earlier during the tenure of the old chairperson, Dr Popo Molefe, but it had stopped the investigation because the old board chairperson had been suspended by the Minister of Transport. Due to what was currently happening such as the allegations and the outstanding items from the PRASA interim board, the Committee had to investigate PRASA.

Mr Hunsinger reminded Members that the PRASA interim board had outstanding documents to submit to the Committee from 2017, the 6 and 13 February 2018. Therefore the Committee needed to make a further request for the submission of these documents.

Mr Ramatlakane agreed with Mr Hunsinger’s proposal to make a further request to the PRASA interim board, sending them a reminder for written responses to questions to be received by the Committee before close of business on 21 February 2018. Some of the answers have been outstanding since 2017 while others were outstanding from the 6 and 13 February 2018.

The Chairperson resolved that the Committee Secretary send a letter to the PRASA interim board to request responses to outstanding issues from 2017, from 6 and 13 February 2018 and the outstanding financial report before close of business on 20 February 2018.

She invited Mr Richard Walker to update the Committee on progress made in reopening the Central line on Wednesday 21 February 2018 as stated by the Acting PRASA Group CEO: Cromet Malapo on 13 February 2018.

Metrorail Central line reopening update
Mr Richard Walker, Metrorail Western Cape Regional Manager, said that he had to deal with distractions to the reopening of the Central line which included his suspension/special leave. He however stated that resources had been mobilised to ensure that the Central line would be reopened on the scheduled date of 21 February 2018.

Mr K Sithole (IFP) asked for clarity on Mr Walker’s statement that he was been placed on suspension/special leave.

Mr Ramatlakane agreed with Mr Sithole that Mr Walker needed to clarify the statement that he was been placed on suspension/special leave and asked who would be taking over from him as regional manager.

Mr Walker replied that certain issues had occurred since the Central line had been closed. These included the meeting between United National Transport Union (UNTU) and the PRASA executive management, Metrorail’s advice to PRASA management that it should not agree with the UNTU request for additional SAPS security, and a unilateral commitment by PRASA management to guarantee UNTU additional SAPS security despite Metrorail’s advice. The commitment includes two police guard escorts for the driver, the guard at the back and in the middle and also armed police escorts at the four stations affected, which was onerous for Metrorail to fulfil. The eight stations were the turnaround stations of Khayelitsha, Chris Hani, Kapteinsklip, Netreg, Philippi, Bonteuwel, Langa and Heideveld. Metrorail did not have the resources at the time and received only 88 additional security on Friday 16 February 2018 to maintain the procurement of armed guards. The situation presently is the armed police guards and the legal unit have said they would not be able to provide the armed guards at all stations but would only be able to maintain physical presence at the stations which had culminated into crisis situation.

Mr Walker said that he had worked with Mr Mthuthuzeli Swartz who was the Western Cape regional manager for three months as an executive manager in customer services before Mr Walker was seconded to Eastern Cape where he worked previously. There has been an ongoing Public Protector investigation of Mr Mthuthuzeli Swartz around criminal allegations which had reached an advanced stage. While in the Eastern Cape he was contacted by the Commercial Crime Unit around permission to sell rail tracks in the Eastern Cape but he was exonerated through a letter signed by a certain Mr Swartz which granted permission for the sales. He was recalled from Eastern Cape to manage the Western Cape operations as a Regional Manager while Mr Mthuthuzeli Swartz was moved to the PRASA Acting CEO: Rail division position from 1 January 2018 which put him in a position to oversee the office that was in charge of the investigations against him. Despite these allegations, Mr Mthuthuzeli Swartz was promoted to Acting CEO PRASA: Rail.

Mr Walker stated that he had tried on several occasions to meet with Mr Mthuthuzeli Swartz for handing over briefs but Mr Mthuthuzeli Swartz had never agreed to meet with him. Rather Mr Mthuthuzeli Swartz had been trying to suspend him since he resumed as the Western Cape Regional Manager. Unfortunately, Mr Mthuthuzeli Swartz’s request has now being granted. The apparent reason for his suspension was that he was “fighting with UNTU” because he put forward a course of action that was consistent with the framework of labour relations. The course of action proposed was consistent with what would be used when employees stopped work. These steps were implemented during illegal work stoppage situations in Kwazulu-Natal with good results. Mr Mthuthuzeli Swartz had written to him the next day not to use the proposed course of action, without copying in any other PRASA executive. Hence, the course of action was not implemented.

Mr Walker stated that when PRASA appeared before the Committee on 13 February 2018, management wanted him to tell the Committee that the Central line would be opened on Monday 19 February 2018 but he was shocked by this posture because Metrorail regional office had earlier informed PRASA management of its challenges. Based on the resources available and the challenges faced by Metrorail in the Central area, he had had to insist that the Central line could only be opened on 21 February 2018. This was misconstrued by PRASA management to mean that Western Cape was not compliant. Also, he was asked to remove the manager of Western Cape even though it was unlawful and he had advised against it because it would affect staff morale. He said that there was proof of procurement tenders that Metrorail regional office had submitted for approval since 2014 that had not being attended to by the national PRASA management office. PRASA management had continually interfered with the Metrorail operations and he had constantly raised concerns with the Acting PRASA Group CEOs that had served during the four years he had worked as Metrorail regional manager but his concerns had never being treated. He did not know why he had to be removed and pleaded with the Committee to come to his aid.

The Chairperson noted that Members wanted to comment but asked that they wait for Mr Walker to complete his brief as the brief would form part of the recommendations on the way forward for Metrorail and PRASA.

Mr Walker said that Metrorail regional office had mobilised resources to ensure that Central line reopened on 21 February 2018. This includes replacing two metres of rail tracks in the Philippi/Chris Hani and Philippi/ Khayelitsha area, the Bonteheuwel station and contractors have been employed to assist Metrorail with reopening Central line. Metrorail has been operating on manual train authorisations (MTAs) since the challenges started and the capacity of MTAs would still being maintained when the Central line reopens. The challenge is to ensure that the area around Philippi is safeguarded from theft and vandalism. Although tests have been conducted on the Central line rails, more tests would be carried out with the inspectors and the Rail Safety Regulator (RSR) today, 20 February, to ensure that the Central line would be reopened on 21 February 2018. When Metrorail regional office met with management, its view was to reopen Central line immediately but Metrorail reminded PRASA interim board of the challenges on the ground that had not being addressed. The challenges are of a technical nature which impacted on the safety of commuters. Hence, the reopening date was moved to 21 February 2018. One critical part to reopening the Central line is that management honours its commitment of added police resources it made to Metrorail’s trade union. If this is not honoured, the Union might refuse to open the Central line. The agreement signed by management with the Union was unilateral; Metrorail regional office was not part of it.

Mr Walker showed a copy of the one-page agreement with the Union. All the documents about communications to management could be submitted to the Committee. It was unfair to be suspended by Mr Mthuthuzeli Swartz, the Acting CEO PRASA, who has so many allegations against him. Also, it would be unfair if management claims it reopened the Central line without any input from the Western Cape Metrorail regional office.

Mr M De Freitas (DA) said that what Mr Walker described was enough reason for the Committee to investigate PRASA. He observed that it was unusual that Metrorail’s good officers were treated unfairly. The Committee must investigate the matters raised by Mr Walker and invite Mr Mthuthuzeli Swartz to answer the allegations levelled against him. Mr Walker had been treated unfairly. Even though the Committee could not do anything about his suspension presently, the case would be revisited and followed up by the Committee.

Mr Sibande expressed concerns about police protection on 21 February 2018 and asked about the relationship between the UNTU and Mr Mthuthuzeli Swartz. There was a contradiction in the role of Mr Mthuthuzeli Swartz as PRASA Acting CEO when he had allegations against him. He expressed concern at the claim by Mr Walker that some tracks had been sold. He asked Mr Walker to state who had employed the contractors, send the documents that substantiated his claims and identify the kingpin of the organised crime in rail facilities urgently.

The Chairperson remarked that an investigation was the best way to resolve Members’ concerns.

Mr Sithole asked Mr Walker what would happen if the inspectors and the Railway Safety Regulator did not approve the reopening of the Central line on 21 February 2018.

Mr Walker replied that if the inspectors were not satisfied, RSR would raise the items that needed to be addressed and Metrorail would act to correct those. Based on Metrorail’s test runs, it is confident that the inspectors and RSR would not have any issues.

Ms Xego expressed concern about the official that would replace Mr Walker while he was suspended and remarked that the stability of PRASA was important.

The Chairperson said that the concerns of Ms Xego would be addressed in forthcoming meetings.

Ms N Nolutshungu (EFF) observed from Mr Walker’s brief that the reopening of the Central line could be sabotaged and asked Mr Walker of Metrorail’s contingency plans against sabotage.

Mr Ramatlakane recalled that during the meeting of 13 February 2018 he had expressed concerns that there was sabotage in the reopening of the Central line to the PRASA interim board. Based on Mr Walker’s briefing, there was a high probability of collusion between PRASA staff and organised crime. Also he suspected that PRASA management would concoct a story that the challenges on Central line were resolved when the regional manager had been suspended. He encouraged Mr Walker to submit all the documents that substantiated his claims to the Committee. The attempts of PRASA to suspend Mr Walker was not the way to resolve the crises in Metrorail and suggested that the Committee reject the merit of Mr Walker’s suspension because it was collusion to achieve results that were unknown to the Committee. He did not know how Mr Mthuthuzeli Swartz could be appointed as PRASA Acting CEO when he was under criminal investigation.

Mr Hunsinger appreciated Mr Walker for appearing before the Committee to reveal the reasons behind the crises in Metrorail. He recalled that during the Committee’s visit to Bonteheuwel train station on 18 January 2018, a general had made a commitment that PRASA would provide police armed guards to secure the assets of PRASA. He asked Mr Walker to state the relationship between UNTU and PRASA because it appeared as if the condition of armed police guards could not be met. He expressed concern about what would happen if armed guards were not available on the Central line on 21 February 2018.

Mr Walker said that sabotage was a real threat on the Central line but Metrorail had been planning against such sabotage. The extra resources that Metrorail had to deploy would secure the area against sabotage but he reminded the Committee that the area was vast. A lot of Metrorail planning was haphazard because operations had been centralised and so Metrorail did not have control over many things. Metrorail had made a lot of requests to the national PRASA office which had not been approved hence Metrorail had not been able to render efficient train services. A Facebook photograph of Mr Mthuthuzeli Swartz with UNTU before he was appointed as Acting PRASA CEO showed that he was linked to UNTU. Metrorail had tried to stop the Union from closing Central line but PRASA management had played into the Union’s hands by making commitments it could not fulfil. He had an affidavit from a human resources junior manager which stated that Mr Mthuthuzeli Swartz had the opportunity to deal with him when he became the Acting PRASA CEO and showed the Committee a copy of the one-page agreement that PRASA management had with UNTU. He appealed to the Committee to ensure that any investigation against him should be carried out impartially.

The Chairperson said she was pleased with the efforts of the regional manager and his team to reopen the Central line and proposed that the session end. She mandated Mr Walker to release the documents that substantiated his claims to the Committee. She asked Mr Walker to ensure that he constantly communicated with the Committee even though he would be suspended.

National Land Transport Amendment Bill [B7-2016]: motion for desirability
The Chairperson asker Members to consider a motion for desirability on the National Land Transport Amendment Bill.

Mr Hunsinger reminded Members that in 2017 when the Committee had first considered the National Land Transport Amendment Bill he had raised concerns that a framework should be used. When the original Bill had been passed in 2009 it had been done in a hurry to ensure that the Bus Rapid Transit program was initiated in time for the World Cup. Members needed check what was missing in the Bill. The Bill needed to work within an overarching framework to point out all things that was needed in the Bill.

Mr Ramatlakane moved the motion for desirability on the National Land Transport Amendment Bill. The question Members needed to answer was if the National Land Transport Amendment Bill was desirable or not and the answer was, yes, the Bill was desirable. He knew Mr Hunsinger supported the motion of desirability however, the answer to Mr Hunsinger’s question on whether the Bill contained everything that was needed was no because there were still issues that needed answers. Also, if the Committee had to wait to advertise for public comments on those issues then there would be delays and the Committee could run into some challenges with finalising the Bill. However, since nothing stopped any Member from sponsoring a private bill to address specific issues, this could be done as a private member’s bill. He appealed to Mr Hunsinger to allow the ongoing process to continue while other things could be added through a private member’s bill.

The Chairperson asked for other Members’ opinion in seconding the motion of desirability of the National Land Transport Amendment Bill.

Mr Hunsinger moved to second the motion of desirability of the National Land Transport Amendment Bill.

The Chairperson observed that Mr Ramatlakane had moved the motion of desirability on the National Land Transport Amendment Bill and Mr Hunsinger had seconded the motion.

National Land Transport Amendment Bill [B7-2016]: input by Parliamentary Legal Adviser
The Parliamentary Legal Adviser, Ms Noluthando Mpikashe, said that the legal team was supposed to present the proposed amendments to the National Land Transport Amendment Bill. However, she and the Department of Transport (DoT) did not agree on the wording of an insertion (i) in Clause 7(1). The DoT said that based on the City of Cape Town submission the existing contracts could not be subject to the proposed amendment. However, she argued that legislation could not be drafted to exempt certain municipalities but each municipality had to apply to the Minister for exemption as only the Minister had the discretion to grant the exemption.

The contested insertion in Clause 7(1) read as follows:

“(1A)(a) A municipality may, in writing, apply to the Minister for exemption from the proviso in subparagraph (xxvi) of subsection (1)(c), and must furnish the Minister with reasons for such application.
(b) In order to enable the Minister to make a decision on such an application, the Minister may call for further information from such municipality.
(c) The Minister may, after considering the application, in writing, refuse to grant exemption or grant exemption, subject to such conditions as he or she may deem fit.
(d) If any such condition is not complied with, the Minister may, in writing, withdraw the exemption concerned or determine new conditions.
(e) The Minister may, from time to time, review any exemption granted or condition determined in terms of this subsection, and if he or she deems it necessary, withdraw such exemption or delete or amend such condition.”

Discussion
Ms Xego asked Ms Mpikashe to give the Committee a draft of her proposed amendment and the DoT proposed amendment to allow Members to compare.

The Chairperson said that Ms Mpikashe would send a copy of what she had just drafted to each Member.

Mr Ramatlakane asked why the DoT was seeking an extraordinary way of drafting legislation.

Mr Sibande agreed that Members needed the two drafts to ensure that Members could compare.

National Land Transport Amendment Bill [B7-2016]: input by Department of Transport (DOT)
Assistant Director General: Department of Transport, Mr Hament Patel, said that the issue involved only new contracts. However when an old contract ends, it should be renewed. Provinces such as City of Cape town feel that since it has been the entity handling a contract and it is continuing with the contract it does not have to go through the criteria of re-applying for registration over again. The DoT knows that different municipalities are already undertaking new contracts after the period of the entire contract expired for example the bus rapid transit contracts. The exemption proposed is that since these municipalities were already handling it, it did not need to reapply for the same contract. DoT feels that there is no need to embark on using these criteria for municipalities that are already working on the contracts to ensure that a mix-up did not occur. If there is a clause that a party has to reapply to the Minister for an exemption it might lead to situations that are cumbersome. He gave the example of the Mamelodi intervention where entities stopped providing bus transportation services because the route was not profitable and it became cumbersome for contracts to be renewed.

Discussion
Mr Ramatlakane said that the view of DoT was that the Committee must regulate re-applications based on current practices at the municipalities but he did not agree. The Mamelodi intervention was not supposed to make a profit therefore Mr Patel’s example to support the DoT proposal was not acceptable. Also, the transport plan should be implemented in consideration of the radical economic transformation agenda. Hence the Committee must decide if it would consider the option of having some entities making a profit or following the radical economic transformation agenda.

The Chairperson said that the revised proposal had been sent to via email to Members for consideration.

Mr G Radebe (ANC) supported the proposal of the Parliamentary Legal Adviser. He stated that entities must reapply to the Minister for exemption and the Minister had the option to approve.

Mr Neville Dingle, DoT Adviser, attempted to support the DoT’s proposal.

Mr Radebe asked who Mr Neville Dingle was.

Mr Neville Dingle replied that he was a consultant for the DoT on transport matters.

Mr Radebe said that the Committee could not accept the input of a consultant.

The Chairperson said that Mr Dingle had to table his input through Mr Hamat Patel.

Mr Hamat Patel introduced Mr Neville Dingle to the Committee as consultant. He explained what Mr Dingle’s input to the Committee was. Mr Dingle had said that larger volumes need to be moved in the morning and afternoon after close of work. Broadly, the Integrated Public Transport Network (IPTN) Plan seeks to bring in taxi operators and it looks to a public transport subsidy rather than a bus or rail transport subsidy.

The Chairperson said that her view was that the Bill should address what could happen in the future. Messages should be sent to inform any party when its licence is about to expire to ensure that the party reapplies in time. She recalled that the Committee had had meetings with taxi operators in the past but the IPTN plan was still found wanting in different provinces. Cape Town taxi operators complained about the narrowing of its routes. Hence, the City of Cape Town should not complain about legislation as Parliament would not legislate for the benefit of any municipality/unit. She advised Members to compare the two versions.

The State Law Adviser Ms Bongiwe Lufuno stated that the position of the legal team on the proposal to reapply for licences through the Minister remained the same.

Mr Hunsinger proposed that Members should have a break to reflect.

The Chairperson agreed.

After the break to realign and consider the proposed amendment, the teams reported that they had not been able to work it through.

The Chairperson accepted the proposal for both the legal team and the DoT to brainstorm the proposal to reapply for a licence after it has expired. She resolved that both teams should re-align and continue on the 21 February 2018.

Mr Ramatlakane agreed with the proposal.

The Chairperson agreed with the proposal and discharged the teams.

The Chairperson said that Members needed to address two matters: the report on the visit to Northern Cape and the next step on PRASA concerning Mr Ramatlakane’s proposal to enforce Rule 227(c).

The Committee agreed that the Committee Report on the visit to Northern Cape should be finalised and submitted.

PRASA investigation resolution
The Committee decided that it was important to conduct an investigation on PRASA before 1 April 2018 despite budget constraints. The Chairperson resolved that two Members would work jointly with the support group to determine the terms of reference of the investigation against PRASA.

The meeting was adjourned.