National Land Transport Amendment Bill: Adoption

Meeting report

Proposed amendments to NLTA Bill

The Chairperson welcomed Members, the Parliamentary Legal Adviser (PLA), the State legal Adviser (SLA), the acting Director General (DG) of the Department of Transport (DoT) and his team. She said the Committee had been faced with a glitch on how to handle the registration of e-hailing operators for three weeks. She hoped that the DoT”s acting DG would help to resolve the glitch to ensure that Members could agree on the National Land Transport Amendment Bill (NLTA) [B7-2016] Bill.

Mr Mathabatha Mokonyama, acting DG: DoT said he was available to deal with outstanding issues on the NLTA Bill, and hoped that the glitch would be resolved, but it would be dependent on the SLA”s certification. The concerns raised by the Committee had been resolved, but the DoT might need to raise some concerns of its own.

The Chairperson invited the PLA to take the Committee through the proposed amendments.

Ms Noluthando Mpikashe, PLA, said that based on Members’ concerns during the last meeting, a separate new clause on e-hailing was proposed, in agreement with the DoT. The new clause was an insertion of Section 66A in Act 5 of 2009. She asked for permission to read out the new clause.

New clause on e-hailing pre-requisites

The insertion in the principal Act was captured as Section 66A (1) under electronic hailing services and reads:

“In the case of electronic hailing service - (a) vehicles are hailed or pre-booked electronically using an e-hailing or technology enabled application, and (b) the regulatory entity granting an operating licence for such service may specify the area for picking up passengers, subject to Section 57(5).”

Section 66A (2) reads:

“If the operating licence specifies the area as envisaged in subsection (1)(b) - (a) the vehicle may leave the area if, on return of the journey, it is to carry the same passengers that it carried on the outward journey or if the vehicle is to return empty; and (b) the vehicle may pick up passengers outside of that area if the fare is pre-booked and the passengers will return to such area.”

Section 66A (3) reads:

“The vehicle may not operate an electronic hailing service where the application for the vehicle is not working properly.”

Section 66A (4) gave the requirements that electronic hailing service must have. They were Section 66A (4a):

“have the facility to estimate fares and distances, taking into account distance and time, and must communicate the estimate to passengers in advance electronically.”

Also, in Section 66A (4b):

“communicate the final fare to the passenger or passengers at the conclusion of the trip electronically, and (c) provide the prescribed details of the driver of the vehicle to the passenger and passengers electronically.”

Section 66A (5) addressed the regulations the Minister may prescribe. They were (a) prescribe “special markings or other requirements for vehicles used for electronic hailing service.”

Also, in 66A (5b) the Minister may prescribe “measures to ensure accurate readings of the e- hailing or technology enabled application,” in 66A (5c) information regarding the driver and the vehicle that must be communicated to passengers, in 66A (5d) other information that the e- hailing or technology enabled application, and in 66A (5e) any other matter affecting the standard or quality of operation of electronic hailing service.

Section 66A (6) gave the benefits of the operating licence and read:

“The operating licence may authorise the use of more than one service or type of service as contemplated in Section 50(2) provided that the operator and the vehicle comply with the requirements of the Act relating to such services.”

Section 66A (7) gave the limits of a person that conducted a business that provided an e- hailing service. These were, in 66A (7a), that a person “may not permit an operator to use the application for a vehicle for which the operator does not hold a valid operating licence or permit for vehicle or whose operating licence of permit had lapsed or been cancelled,” and (7b) “must disconnect the e-hailing application forthwith and keep it disconnected until a valid operating licence had been obtained for the vehicle.” Section 66 (8) read: “a person who fails to comply with subsection (7) commits an offence.”

The Chairperson remarked that the insertions in section 66A were the proposed amendments that had been agreed upon after engagements by the legal team and the DoT based on concerns raised by Members in earlier meetings. She asked Members if the proposed changes were in line with the concerns raised by Members in earlier meetings.

Ms S Xego (ANC) agreed that the proposed amendments were in line with Members” concerns.

Mr M Sibande (ANC) said that the main concern of the Committee had been the electronic hailing service, and the new clause read out by the PLA addressed it.

The Chairperson appreciated the work done by the legal team and the DoT. She proceeded to read the proposed amendments to the NLTA Bill clause by clause, and asked Members to state if they agreed with them or had any concerns.

Clause 1

In Clause 1, proposals were made to insert the definition of e-hailing after the definition of “designed or modified” in Clause (1c). The definition also included the features the e-hailing application must have in Clauses (1a), (1b), (1c), (1d) and (1e). In Clause (1c) (a), which deals with integrated public transport, proposals were made to substitute the word “have” with the phrase “and may or may not have a” and also to omit the phrase “if road based”. In Clause (1f), a proposal was made to insert “non-motorised” after the word “motorised”.

Members agreed with the proposals.

Clause 3

In Clause 3, proposals were made to insert a new paragraph on moratorium as Clause 3 (c) after line 16 page 4 of the principal Act. In Clause 3(e) (y) a proposal was made to change the phrase “requirements and time-frames” to “guidelines and desired outcomes” in line 27 page 4.

Members agreed with the proposals.

Clause 5

In Clause (5b) in paragraph (f), the word “composition” was inserted before “powers and duties of Provincial regulatory entities” and in Clause 5(c), a subsection was inserted which mandated the Member of the Executive Council (MEC) to publish drafts of regulations for public comments in the relevant provincial gazette.

Members agreed with the proposals.

Clause 7

In Clause (7h), a provision was made for the Minister, by notice of the gazette, to exempt municipalities that had already concluded the contracts referred to in subsection (1) (c) (xxvi). Also, after Clause 7 (m) subsection (8), to insert (a) and omit the word “to” in line 33 page 6 and insert “and must” after the word “contract;” in line 35 page 6, to insert the phrase “and where appropriate the Minister must intervene or issue a directive to the province or municipality” under section 5(6). Also, in Clause 7 (m) subsection (8), after line 36, to insert a paragraph (b) that says “subject to the subsection (1A), the proviso in paragraph (a) would not apply to municipalities that have completed contracts referred to in subsection (1) (c) (xxvi).”

Members agreed with the proposals.

New clause

 

A new clause was proposed which amended Section 12 of Act 5 of 2000, and dealt with provinces which passed legislation or entered into an agreement with one or more municipalities on joint road transport matters.

Mr Sibande agreed with the proposed amendment.

Mr Mokonyama expressed concern regarding what would happen if transport services in a municipality transcended different provinces. He suggested that it would be better if the National DoT were involved in any issues that arose in transport services in a municipality that transcended different provinces.

The Chairperson said the Mr Mokonyama was raising a proposal that the National DoT needed to be involved in intergovernmental relations when issues arose in municipal transport services that transcended different Provinces.

Mr Sibande asked for clarity.

The Chairperson reminded Mr Sibande that he was a champion of transport services in the Moloto corridor, which traversed Gauteng, Mpumalanga and Limpopo. The proposal dealt with what would happen when issues arose on transport services in such a municipality that transcended three provinces.

Ms Xego said it was very important to consider such situations, and was of the view that the Minister and the National DoT should be involved with resolving any issues that arose on transport services in such a municipality.

The Chairperson asked Ms Xego how the provision should be granted.

Ms Xego said it should read: “resolution should be in consultation with the Minister and the National DoT”.

The Chairperson asked Members to consider the proposal.

Mr Sibande seconded the proposal.

Mr C Hunsinger (DA) and Mr M Shelembe (NFP) agreed with the proposal as well.

Mr Mokonyama said the legal team was particular about using the word “in” or the word “after”.

The Chairperson agreed that the amendment should read “after consultation with …,” not “in consultation with …,” and it would be a new clause.

Clause 9

In Clause 9, which dealt with intermodal planning committees, paragraph 4 specified the functions of a province contemplated in Section 12(1) for the municipalities that were members of the entity as set out in Section 11(1)(c)(xix) for those municipalities.

All Members agreed with the proposal.

Clause 11

In Clause 11, a proposal was made to add a sub-section that the municipalities would receive new applications for permits only if this was in line with the integrated transport plan in Clause 11(3).

Mr Sibande agreed with the proposal.

The Chairperson noted that the Committee had engaged at length on the proposed amendment in Clause 11.

Clause 19

Clause 19 specified that planning authorities must rationalise public transport services in their area, based on the integrated transport plan after consultation with affected operators.

Mr Sibande agreed with the proposal.

Clause 22

In Clause 22. the word “substantiate” was to be changed to “material”.

All Members agreed with the proposal.

The Chairperson commented that the Committee had been schooled in the meaning of both words.

Clause 26

In Clause 26 (47) (1), a timeframe of seven years was given for the renewal of permits.

Mr Mokonyama said he had been briefed about the discussion, but the DoT had learnt from experience that specifying the period for registering for permits would not help matters. One of the triggers for the amendment had been that the DoT had earlier legislated a period for the registration, but the period had not been met. The likelihood was that the DoT might need to come back to Parliament for another amendment if the period legislated was not met. Factors against issuing permits include the death of the owner and delays when documentation needed to be filled by the party that inherited the vehicle. Such situations led to unintended consequences when the permits needed to be renewed. The DoT had had to go to the courts for an extension when it could not meet the date in 2016 for the renewal of permits. At the time, it had to assure the judge that it would not come back to ask for extensions by using the platform of legislation. Therefore, the proposed amendment to remove the period was meant to guide against time frames, because non-renewal was mostly not the fault of any party.

The Chairperson asked for comments, because Members had earlier agreed to put a timeframe on the renewal of permits.

Mr Hunsinger said the Committee could not be blamed for the DoT”s non-decisiveness.

Mr Sibande requested clarity, because Members knew from their legal experience that when legislation existed without time frames, officials would not bother about its implementation. The Committee insisted on time frames to ensure that officials implemented legislation.

The Chairperson said the Committee was aware that there were more vehicles in public transport than permits issued, so it had put timeframes into the clause to ensure that vehicles that did not have permits were taken off the road. The time frame specification would ensure that the system was cleansed and led to an efficient transport system. The Committee was also aware that the even years were not just starting, so the DoT should ensure that it completed the renewals within the remainder of the year available.

Mr Mokonyama said the only challenge with specifying a timeframe for issuing permits was the unintended consequences, although he admitted that the regulations could be violated. He reminded the Committee of his earlier example of how delays could occur, and said that as a result of the timeframe given, court cases had been instituted in KwaZulu-Natal. A regulation and legislation performed the same function. However, if it was a regulation, the DoT might not have court cases based on the time frames, because regulations were flexible. Regulations allowed for adjustments when there were challenges, but challenges on time frames based on legislation could be fixed only at Parliament. Hence, the DoT had to go to court to continue with conversions.

He said that in cases where the DoT had to impound illegal vehicles, the remaining vehicles that were legal could be only the dilapidated ones. Hence, if a declarative legislation was issued, the DoT may be taken to court for not issuing permits to roadworthy vehicles, even though they were illegal.

The Chairperson said the Committee was taking it from where the DoT had left it and was giving the DoT a further two years in which it must renew all permit applications, despite the factors against renewals.

Mr Hunsinger said the assumption that regulations and legislation performed the same function was flawed. The Committee felt that the provision must be elevated from a regulation to legislation to ensure that officials complied. The time frame was needed to ensure that all permits had been dealt with in the specified time.

Mr Sibande said the Committee needed to strengthen the laws of South Africa. In the past they had not been followed because of reasons such as the DoT not having enough staff. Hence, time frames were needed to ensure accountability.

The Chairperson asked for the DG’s comments.

Mr Mokonyama said legislation could be improved only through implementation. He said that the number of years to ensure permits were renewed had been further increased by seven years, although two years had elapsed within the seven years. He said the DoT would abide by the timeframe given by the Committee, despite the challenges in renewing permits.

The Chairperson asked the legal team for any comments before Members replied on whether they agreed to continue with the specified time frame of seven years.

Ms N Mpikashe said the legal team agreed with the seven years’ time frame.

The Chairperson asked Members to consider the motion to adopt the amendments in Clause 26 which gave a timeframe of seven years for the renewal of permits

Mr Hunsinger agreed.

Clause 31

In Clause 31, proposals were made to ensure that parties applied to a municipal regulating entity for services within its jurisdiction. A paragraph was also inserted in 31(2e), which specified the category of vehicles to be used for transport services.

All Members agreed with the proposal.

Clause 38

In Clause 38, amendments were made to Section 66 of the Principal Act. Clause 38 (7a, b) and Clause 38(8) dealt with parties that conducted business with e-hailing service when permits had been cancelled.

All Members agreed with the proposal.

New Clause on e-hailing pre-requisites

The Chairperson reminded Members that they had earlier agreed to the new clause on e-hailing pre-requisites, and read out the new clause again.

Mr Shelembe sought clarity on the new Clause (4a), which stated: “have the facility to estimate fares and distances, taking into account distance and time, and must communicate the estimate to passengers in advance electronically”.

Mr Mokonyama said it was possible, since the e-hailing application could calculate fares based on distance and time, so it could estimate the fares in advance to passengers. The e-hailing application would also notify passengers at the end of the ride.

Mr Shelembe asked the DoT to say what would happen if the passenger did not understand how to use the e-hailing application.

The Chairperson said Members would explain to their constituencies how the e-hailing application operated.

Mr Mokonyama said the DoT ran adverts to explain how the e-hailing application operated.

The Chairperson read out the new clause that amended the e-hailing pre-requisites.

Mr Hunsinger said one direct element the Committee needed to consider changing was that the Minister “may” mark the e-hailing vehicle. The legislation should read that the Minister “must” mark the e-hailing vehicle. Also, if this legislation was not captured in the same way for minibus/metered taxis, it should be changed.

The Chairperson asked if Members agreed.

Mr Sibande said if the Committee was addressing e-hailing services it should be clear and not limit it to Uber vehicles. He asked DoT of its experiences on Uber.

The Chairperson asked Mr M Mokonyama to comment.

Mr M Mokonyama said he would agree that the change to “must” would be appropriate because if the e-hailing vehicles were not marked it could be risky. However, he asked Members if parties mistook a private vehicle for an e-hailing vehicle if the e-hailing vehicle was dropping his wife or children at the airport.

Mr Shelembe said he agreed with a “must”.

Mr M de Freitas (DA) said it should be a “must,” but he remarked that some families dropping loved ones at the airport had been attacked in the past.

Mr Hunsinger said that the law was that an e-hailing operator needed a permit before operating on the street.

Ms Mpikashe asked for clarity on the new clause on the e-hailing pre-requisites for 5a and 5b, because a “must” was appropriate for 5a, but was not necessary for 5b and other parts of subsection 5.

Mr Hunsinger asked if the permit referred to vehicle information as well as driver information.

The Chairperson asked the DoT if it was necessary to have a “must” for 5b and other parts of 5 sub-sections.

Mr Mokonyama said in his opinion the word “must” should be delinked from 5b, so 5a would be a “must,” while 5b, 5c, 5d and 5e would be a “may”.

The Chairperson said the Committee accepted it as 5a “must,” while 5b, 5c, 5d and 5e would be a “may”. She asked the DoT to say if the permit referred to vehicle information as well driver information.

Mr Mokonyama said driver information was included in vehicle information which was captured in the permits. A public transport service must be licensed by law.

New Clause on contravention of e-hailing operations

The Chairperson read out a new Clause 48, which amended Section 90 of the Principal Act. Clause 48a (IA) stipulated that a party that did not hold a valid permit, but operated a metered taxi or e-hailing App, contravened section 66 (7). Also, Clause 48a (IB) stipulated that if a party provided an e-hailing App and permitted an operator to use the application on a vehicle that did not have a valid permit, the party would contravene section 66 (8). Also, in Clause 48b subsection 2, a term of two years’ imprisonment or a fine not exceeding R100 000 was imposed for contravening Clause 48 paragraphs (a), (b), (d), (e), (IA), (IB) or (c) of subsection 1. She asked if Members agreed.

Ms Xego agreed with the provision.

Translational provision

The Chairperson read out the translational provision 51.

Mr Neville Dingle, Consultant: DoT, said that the word “lapse” should replace “lapsed.”

Rejection of Clauses 51 and 53

The Chairperson read out the proposal to reject Clause 51 and 52.

Mr Sibande agreed with the provision.

New Clause on amendment of laws

The Chairperson read out a new Clause 53, which proposed that a new clause amending laws in the schedule, be inserted in Clause 53.

Mr Sibande agreed with the proposal.

The Chairperson noted that that the two Acts commenced on different dates.

Mr Sibande agreed with the proposal.

The Chairperson read out the schedules for Act No 9 of 1989, the legal successor to the South African Transport Services Act of 1989, and Act No 74 of 1977, the Road Act of 1977, and the extent of the amendments to both Acts.

Mr Hunsinger asked where the Committee could emphasise the objective of freight traffic on rail.

Mr Sibande said Mr Mokonyama should comment before the Committee finalised the NLTA Bill. She asked the DG to comment on Mr Hunsinger”s concerns, which addressed critical matters on rail services. Could the Committee introduce rail matters, as it was addressing the National Land Transport Act?

Mr Mokonyama said that some amendments and propositions had been discussed by the DoT and the legal team, as requested by Parliament. The DoT agreed with the proposed “A” list. It had an approved road freight strategy which showed the types of freight that could be moved from road to rail. The NLTA deliberations would be followed by deliberations on the Rail Act, which was why the DoT had talked less about rail and focused on land/public transport.

The Chairperson asked Members if the Committee could agree to the NLTA Act (B7-2016) in terms of the schedules, clauses and amendments.

Mr Sibande supported the proposal for adopting the NLTA Bill.

Ms Xego agreed with the proposal as well.

The Chairperson noted that Members had adopted the NLTA Bill, and said it would follow the normal process.

Mr De Freitas asked when the NLTA Bill would be submitted.

The Chairperson said the NLTA Bill would be submitted when Members came back from recess.

Mr Mokonyama expressed his appreciation to the Committee and the drafters of the NLTA Bill.

The Chairperson thanked Mr Mokonyama for his presence at the meeting, as it had helped the Committee in its work.

Other Bills for consideration

She said the Committee still had to work on three more Bills, and the next to be deliberated on was the Road Accident Benefit Scheme (RABS) Bill.

Mr Hunsinger asked the Chairperson for clarity the next Bill to be deliberated upon. He proposed that the Committee should deliberate on other Bills before the RABS Bill.

Mr Mokonyama said there were other Bills that did not have as many issues as the RABS Bill, and could be deliberated upon more quickly than the RABS Bill, like the Civil Aviation Bill.

Mr De Freitas said it would be beneficial to deliberate on other Bills like the Civil Aviation Bill, which was of international importance.

The Chairperson said she did not have any objection to deliberating on other bills before the RABS Bill.

Mr Hunsinger commented that serious pieces of legislation had been concluded that had side-lined the Committee. These were the Learner Transport Policy and the Border Transport Policy.

The Chairperson said she also noted that the Environmental Transport Policy had side-lined the Committee. She asked the DoT to comment.

Mr Mokonyama said he did not know how the gaps had arisen, and promised that in future the DoT would alert the Committee when the legislations were been deliberated on. However, the Learner Transport Policy had been brought before the Committee.

The Chairperson recalled that the invitations for the Learner Transport Policy had come to the Committee at the eleventh hour, and it had committed itself to other engagements.

Mr Hunsinger agreed with the Chairperson that the Committee had received the invitations late and the Committee had had other engagements.

The Chairperson confirmed that the Committee had missed the deliberations because of a SCOPA meeting. She asked the Committee support team to write to the Committee on Basic Education to advise that the Committee was being side-lined. She informed the DoT that the Committee would correct the issue from the side of Parliament.

Mr Mokonyama said the government had approved the Learner Transport Policy in 2016. The DoT had been invited by the Portfolio Committee on Basic Education many times, and the DoT was surprised that the Committee had not being available at the time.

Mr Hunsinger asked why there had been subsequent meetings, when government had approved the Learner Transport Policy in 2016.

The Chairperson said the meetings convened had been about implementation.

The Committee deliberated on its draft programme for the second term. Members agreed with the proposals made and the Chairperson said the programme would be sent to Members after the dates and venues for meetings had been confirmed.

The meeting was adjourned.