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

Meeting report

The Chairperson opened virtual meeting, welcoming the Members, the Committee support staff and all the guests in attendance.
 
The Chairperson accepted apologies from Ms N Nolutshungu (EFF), Minister of Transport and Director-General, Mr Alec Moemi. He announced that the public hearings on the National Road Traffic Amendment Bill on 10, 11, 16, 17 and 18 March 2021 had been approved.

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

Outstanding definitions and consequential amendments
Adv. Alma Nel, Content Advisor, Portfolio Committee on Transport, recalled that some of the consequential amendments arising from the changes in the definitions related to “aerodrome” and “airport” had not been discussed.

Mr L Mangcu (ANC) asked for confirmation that “aerodrome” included “airport,” and he hoped that the change would not lead to attempts to rename major airports.

Mr C Hunsinger (DA) said that according to his understanding, the change to “aerodrome” in various clauses was simply to align the Bill with the International Civil Aviation Organization (ICAO) practice. An aerodrome included related infrastructure in addition to airport buildings.

Adv. Nel confirmed that the definition of “aerodrome” did describe an airport although it did not explicitly mention “airport.”

Mr Mangcu asked how ICAO defined “aerodrome.”

Mr Levers Mabaso, Acting Chief Director: Aviation Safety, Security, Environment and Search and Rescue, Department of Transport (DoT), explained that the definitions of “aerodrome” and “airport” were equivalent to the definitions of “vehicle” and “car” or “aircraft” and “aeroplane.” The former included the latter. There were certain provisions in the Bill that should only apply to airports. In these instances the word “airport” would not be replaced by aerodrome.

Mr Mangcu proposed that the definition of “airport manager” be left in the Bill and not replaced with “aerodrome manager,” as the Bill would still need to refer to airports in some places.

Mr Mabaso recommended that the definition of “aerodrome manager” be included so that the Bill would cover heliports as well.

Ms M Ramadwa (ANC) agreed with Mr Mabaso.

Mr Hunsinger was concerned about the use of “aerodrome manager” because according to ICAO definitions, it referred to a particular geographical area. Operations of the Airports Company of South Africa (ACSA), Air Traffic and Navigation Services (ATNS), the South African Police Service (SAPS) and the South African National Defence Force (SANDF), among others, were carried out on the same premises. Would an aerodrome manager be responsible for all of these agencies? For this reason he proposed that “aerodrome manager” should not be defined.

Mr K Sithole (IFP) asked where exactly “aerodrome” and “airport” would be used in the Bill.

Mr M Chabangu (EFF) agreed with the inclusion of “aerodrome manager.” If the Committee could not reach consensus, the Department should return with a proper definition.

The Chairperson asked the Department to clarify what the jurisdiction and responsibilities of an aerodrome manager would be.

Mr Mabaso explained that the responsibilities of an aerodrome manager began when the Minister designated a particular aerodrome, which had certain security implications. The Minister appointed an aerodrome manager for the purposes of the Act. The aerodrome operator would manage the geographical area, and agencies such as ACSA were tenants. The definitions of “airport” and “helipad” would not be deleted as the regulations contained prescriptions particular to each, such as the length of a runway. The ideal situation would, however, be to delete these definitions, as these terms were included in the definition of an “aerodrome,” and not refer to them in the Act.

The Chairperson suggested that the Department return to the Committee with greater clarity on what it intended. It did not seem like there was complete agreement.

Adv. Nel said that the problem seemed to be connected to the definitions of “designated airport,” which appeared in the principal Act, and “designated aerodrome,” which was proposed to replace it. The definition of “airport” itself would remain.

Mr Hunsinger asked whether ICAO gave any guidelines on what qualified as an aerodrome.

Mr Mabaso said that there were guidelines and he would consult them.

Clauses 14-23
The Committee accepted Clause 14, amending section 76 on the functions of the Civil Aviation Authority (CAA) board, and Clause 15, amending section 77 on the appointment of CAA board members.

Adv. Nel summarised Clause 16, amending section 82.

Mr Sithole wondered how a government employee would be penalised for non-attendance at meetings of the board if they were not being paid for being a board member.

Mr Mangcu suggested that since board members served in their capacity as a governmental official, non-attendance at board meetings would be penalised in the same way as someone who did not come to work.

The Committee accepted Clause 16.

Adv. Nel summarised Clause 17, which repealed section 83.

Mr Sithole asked why this section was not being replaced with anything.

Adv. Adam Masombuka, Chief Director: Legal Services, DoT, explained that it was not necessary to mention the Corporate Governance Plan in the Bill. The removal of this section would bring the Act into alignment with the Public Finance Management Act (PFMA).

The Committee accepted Clause 17.

Adv. Nel summarised Clause 18, which replaced section 85. It covered the appointment of the Commissioner of Civil Aviation. The procedure was similar to that involved in the appointment of a Director-General. The biggest change from the previous section was that the CAA board nominated a list of candidates from which the Minister made the appointment.

Mr Mangcu asked for confirmation of whether the definition of “citizen” included naturalised South Africans and if it was the intention that naturalised South Africans should be eligible for appointment as Commissioner of Civil Aviation. He also asked what the security clearance requirement for the Commissioner was.

Adv. Nel drew attention to sub-clause seven, according to which the Commissioner was required to have top-secret security clearance, which was the highest level of clearance granted by the Department of State Security.

Adv. Masombuka confirmed that a naturalised South African was a South African citizen.

The Chairperson asked whether this was normal practice among the countries of the world.

Adv. Masombuka was not sure about the practice in other countries but explained that the process of naturalisation was intended to given a person the same rights as a citizen born in South Africa.

Mr Sithole was not satisfied with this response. He was concerned that the Department had included a provision without having studied international precedents.

The Chairperson accepted that a naturalised citizen enjoyed the exact same rights as a citizen born in the country.

Adv. Frank Jenkins, a senior parliamentary legal advisor, drew attention to section 110 of the Act, which referred to the definition of a citizen in the South African Citizenship Act. It could be assumed that this definition would apply throughout the Act and the Bill. There was no difference in the rights enjoyed by   naturalised citizens and those who were born in the country.

Mr Sithole asked for a definition of “citizen.”

Adv. Jenkins said that it differed from country to country. In some countries, including South Africa, citizenship was conferred automatically on people born in the country. A person who spent a certain number of years and invested a certain amount of money in South Africa could become a permanent resident, and after a few more years they could apply for naturalisation. This would require them to swear an oath of allegiance to South Africa.

Mr Chabangu said that the Bill should explicitly state that the shortlisted candidates submitted to the Minister should all be suitably qualified.

The Committee accepted Clause 19, which dealt with the duties of the Commissioner.

Adv. Nel summarised Clause 20, which amended section 90 and provided for the appointment of an acting Commissioner. She asked the Department to confirm that subsections four to six were not being replaced.

Mr Mangcu observed that the qualifications of the acting Commissioner were not indicated, although he did note the reference to the proposed new section 85(2). He would not accept the Clause if the acting Commissioner did not require the same qualifications as the permanent Commissioner.

Adv. Nel pointed out that the provisions of section 85(2) meant that the Minister did have to consider the management and aviation technical knowledge as well as experience of the acting Commissioner, just as when appointing the permanent Commissioner. She added that it was normal practice to appoint an official in acting capacity, with the same skills as the permanent official – although this was not always possible.

Mr T Mabhena (DA) observed that section 85(2) was not explicit on how much experience the Commissioner must have. It could be argued, for example, that Mr David van Rooyen had experience in the position of Finance Minister, even though he had only served in that position for a matter of hours.

Mr Mangcu insisted that an acting Commissioner should be subject to the same stringent requirements as the permanent Commissioner. Any official that was eligible to be appointed acting Commissioner should also require the same level of security clearance.

Adv. Masombuka agreed to revise this Clause.

Adv. Nel summarised Clause 21, which amended section 94 and dealt with the performance agreement between the Minister, the Commissioner and the CAA. She drew attention to the fact that subsections four to six were being removed without replacement.

Mr Mangcu was satisfied with the removal of subsection six but asked for clarity on the reasons for removing subsections four and five.

Mr Mabaso replied that these subsections had never been implemented. It was expensive to public the performance agreement in the Gazette and to make it available at the CAA office, and it had been decided that this cost was not justified.

Mr Mangcu accepted this explanation and suggested that the performance agreements should then be made available on the CAA website.

Adv. Nel pointed out that section 95 required the performance agreements to be made widely available, in compliance with the PFMA.

The Committee accepted Clause 22, which amended section 95 so that the PFMA applied to the CAA as a whole and not just the board.

Adv. Nel summarised Clause 23, which substituted section 98 on conflicts of interest, highlighting some of the differences between the section presently in the Act and the replacement, such as the removal of explicit reference to family members. These were covered in other clauses, however.

Mr Mangcu was concerned about the removal of references to family members and gifts. Which clauses covered them?

Adv. Nel replied that the Commissioner would probably have to specify the factors constituting a conflict of interest in terms of section 98(2).

Adv. Masombuka added that Clause 23 was intended to apply to employees of the CAA who wanted to engage in work outside the scope of their duties, not a prospective employee who was being asked to declare their interests.

Mr Mangcu reiterated that the principal Act did refer to relatives and gifts in section 98. How would the Bill achieve the objective that these references achieved in the Act?

Adv. Masombuka said that the Department would look into this matter.

Deliberations on the Economic Regulation of Transport Bill
The Committee continued its clause-by-clause deliberations on the Bill.

Chapter five: Enforcement of Act, Part A: Powers in Support of Investigation (continued)
Adv. Nel summarised Clause 60, which dealt with the Regulator’s handling of potentially confidential information submitted by regulated entities.

Mr McDonald was satisfied with the clause.

Mr Hunsinger said that the wording of the clause was in a certain sense retrospective. He thought that information provided to the Regulator should be regarded as confidential as a matter of course, rather than confidentiality being something that had to be claimed after the information was already in the Regulator’s hands.

Mr Mangcu supported this suggestion.

Adv. Nel summarised Clause 61 on the powers of the Court.

Mr Mangcu asked whether it was a common practice to mention powers of the Court in an Act.

Ms Thiloshini Gangen, parliamentary legal advisor, replied that it was a common practice in some Bills. The powers of the Court would be available in any event. It was included in the present Bill for the sake of transparency.

The Committee accepted Clause 61.

Chapter five: Enforcement of Act, Part B: Offences and Penalties
Adv. Nel summarised Clause 62 on breaches of confidence.

Mr Hunsinger suggested that, in the light of this clause, Clause 60 should be amended so that all information submitted to the Regulator would be considered confidential unless the submitter expressly declared that it could be handled as public knowledge.

Mr Mangcu did not think the submitter of information should be have to agree that information submitted to the Regulator could be disclosed. Section 62(1) provided regulated entities with an opportunity to prevent the disclosure of submitted information. He did, however, agree that the information should be considered confidential by default. He also wondered whether “confidence” was the right word to use in the clause heading.

Mr Hunsinger conceded that Clause 62(2) was sufficient and withdrew his suggestion. He did not see any problem with the word “confidence” in the title.

Adv. Nel explained that “confidence” was a legal term in this context and it referred to the revealing of confidential information. She summarised Clause 63 on hindering the administration of the Act.

Mr Hunsinger said that the offences listed in 63(1) should be referenced again in 63(3), which covered offences subject to section 56(4) and (5).

Mr Mangcu agreed with this addition.

Mr Mabhena agreed with this addition and also drew attention to Clause 63(2)(a), according to which it was an offence for someone to ignore a summons without sufficient cause.

Adv. Nel summarised Clause 64 on offences relating to the Regulator or Council, drawing attention to an apparent cross-referencing error in Clause 64(f).

Mr Moeketsi Sikhudo, Project Manager, Single Transport Economic Regulator, DoT, agreed that the cross-reference in Clause 64(f) should be to section 55 and not 53.

Mr Mangcu asked for clarity on the intent of 64(b), according to which any conduct that would be regarded as contempt in a court of law would be an offence in terms of the Act.

Adv. Nel said that 64(b) should be read in connection with 63. It would apply to someone who hindered an investigation by refusing to supply information after being subpoenaed, failed to answer questions of gave false information.

Mr Mangcu was not entirely satisfied with 64(b), given this explanation. He would have preferred that it did not refer to court proceedings in an analogous way but actually described the offence.

Mr Hunsinger did not think that the wording of 63(b) really captured the intent described by Adv. Nel. Contempt of court was something very specific relating to injuring the dignity and respect of a judicial system. He asked the Department to reconsider this sub-clause.

Ms Gangen suggested that 64(b) might be rephrased in terms of obstruction.

Mr Hunsinger was concerned that 64(f) would hinder employees of a company in the ordinary day-to-day exercise of their jobs. At what stage of an investigation would access to the premises of a business be limited?

Mr Sikhudo replied that the Department would clarify how and when the rights of employees at business premises would be handled in terms of Clause 64(f).

Adv. Nel summarised Clauses 65 and 66, which covered offences related to prohibited conduct and penalties.

Mr Mangcu asked whether “regulated entity” had been defined.

Adv. Nel noted the definition in Clause one, which referred to Clause 4(1) and (2).

Mr Mangcu asked what the intention of the exemption contemplated in Clause 65(2) was.

Mr Sithole also wanted this clarified.

Mr Hunsinger said that there seemed to a negative loop among these clauses. They needed to be reconsidered in terms of what they were intended to achieve. There seemed to be three overlapping objectives. Further clauses might be needed to clarify these objectives.

Mr Sikhudo asked Mr Hunsinger to expand on what these three objectives were. He explained that the intent of 65(2) was simply to avoid double-penalisation of a regulated entity for a single offence through a compliance notice in addition to a price control reduction.

Mr Hunsinger appreciated this explanation, which made the intention much clearer. The Bill could still benefit from some refinement, however. The three objectives he identified were price control reductions, compliance notices and penalties.

Adv. Nel drew attention to Clause 20, which dealt with the issuing of compliance notices.

Chapter five: Enforcement of Act, Part C: Miscellaneous matters
Adv. Nel summarised Clause 67 on civil actions and jurisdiction.

Mr Mangcu understood that the overarching approach of this Clause was to protect the Regulator from Civil Court claims in cases where the Act was wrongly applied. If this understanding was correct, why this approach was being taken?

Mr Sithole requested clarity on Clause 67(2)(a). Would it prevent someone from asserting a claim in a Civil Court if they had been underpaid?

Adv. Nel replied that 67(2)(a) applied where a consent order had been agreed to, but asked the Department to confirm this.

Mr Sikhudo said that this Clause 67 had been included in the Bill on legal advice and he requested time to obtain a legal opinion.

Adv. Nel summarised Clause 68 on limitations on bringing action.

Mr Sithole asked for clarification of Clause 68(2).

Mr Sikhudo explained that this clause was simply to prevent different sections of the Act being used to prosecute the same instance of prohibited conduct.

Adv. Nel summarised Clause 69 on the serving of documents, drawing attention to the fact that e-mail constituted an official channel for the serving of notices.

Mr Hunsinger asked whether “person” might need to be defined in this Clause. In the case of a notice served to the Regulator, for example, which person represented the Regulator for the purpose of receiving a notice?

Mr Sithole asked about the timeframe for delivering notices.

Adv. Nel noted that the definition of “person” in the Bill included juristic persons. She added that Clause 69 provided for notices served by the Regulator. She also noted that different kinds of notices were referred to throughout the Bill, each with a specific timeframe associated with it.

Mr Sikhudo suggested that these issues could be clarified, along with Clause 67, after consideration by the Department.

Adv. Masombuka explained that Clause 69 dealt with the method of serving a notice. The notice itself would contain an indication of the timeframe within which the person was expected to react to it. It was not necessary to mention timeframes in Clause 69. “Person” in this clause simply meant the person to whom a document was being served.

Mr Hunsinger still thought that the sense of “person” needed to be refined. What natural person was the appropriate representative of a juristic person for the purpose of receiving a notice in terms of Clause 69? It could not just be any employee of an organisation; it should be a formal representative.

Adv. Masombuka understood Mr Hunsinger’s point but did not see how the Bill could define every natural person authorised by their employer to receive notices. The appropriate person to receive a notice would differ depending on the particular entity or organisation.

Mr Hunsinger appreciated the problem but appealed to the Department to see it from the point of view of an organisation that might be facing material losses arising from the notice. Assuming that there was a process of communication that took place before a final notice was served, it should be possible to identify someone who could be considered to represent the organisation for the purpose of receiving a notice.

Mr Sikhudo noted that these were genuine issues. For example, if someone lived in a security estate, would they be considered to have received a notice if it was delivered to the security office? He asked if the Department could have time to reflect on the matter.

Chapter six: General Provisions
The Committee accepted Clauses 70 and 71, which were standard clauses covering consequential amendments and transitional arrangements, and the short title and commencement of the Act.

The Chairperson asked all political parties to address issues of attendance discipline among their Members.

The meeting was adjourned.