ROUGH OUTLINE OF NPA PRESENTATION TO THE PORTFOLIO COMMITTEE ON TRANSPORT ON 18 JUNE 2003
INTRODUCTION
[INSERT]
ISSUES OF FUNDAMENTAL IMPORTANCE
Ensure that the NPA is able effectively to operate as the Authority during the first two phases (i.e. as a division and subsidiary of Transnet)
clauses 3(1) and (4) provide for performance of the Authority's functions
the Initial and Interim Authorities should be deemed to be the Authority
should provide that the Initial and Interim Authorities must perform the functions, and have all the powers, of the Authority
[do we say anything about the divisional board?]
should stipulate that the Interim Authority must be incorporated prior to the concessioning of port terminals [note that our current comments suggest that the subsidiary must be incorporated prior to the "commencement" of the concessioning process]
[include 4.4.5 at clause 27 comment]
The Bill should clearly provide for the transfer of staff, assets, liabilities, rights and obligations from the Initial to Interim Authority.
clauses 26 and 27 provide for transfer from Interim to Final Authority
clause 3(4)(a) generally provides for transfer of assets, liabilities, rights and obligations from the Initial to Interim Authority
clause 26 should extend to the initial transfer from Initial to Interim Authority
should include a more detailed provision than clause 3(4)(a), along the lines of clause 27
in light of clause 3(5)(a), the Bill should provide for possible direct transfer from Initial to Final Authority
NPA should be exempt from tax and other duties for both transfers
Transfer from the Interim to Final Authority should be structured as a transfer of shares.
clause 27 currently provides for transfer of business as a going concern;
transfer of shares:
removes uncertainty as to what is to be transferred
does not require the formation of a separate legal person
will not require the cession of existing contracts
would be preferable for tax purposes
The powers of the Regulator should be clarified and limited
clause 30(1) is too wide and uncertain
the remainder of Chapter 5 relates to appeals and complaints
the Regulator's function should be to hear appeals and complaints against the decisions or actions of the Authority
the subject–matter of the appeals and complaints should be limited to claims that the Authority is abusing its position in:
unfairly preferring Transnet over other port users
unfairly discriminating against port users in relation to the Authority's services
persons whose rights are adversely affected by the actions of the Authority may lodge complaints
clause 30(1) should be deleted
Some specific concerns with clause 30(1)
the Regulator should not determine guidelines for concessions or PPPs
no indication given of the directives that may be issued
the Regulator's jurisdiction over tariffs should be limited to allegations that the Authority is abusing its position in preferring Transnet
the provision relating to hearing appeals and reviews is too wide
The Regulator should be temporary (i.e. cease to exist after the transfer from the Interim to Final Authority
The treatment of port facilities
definition should include all port facilities other than terminals;
definition of "port repairs facilities" should be changed
clause 56 should provide for concessions or PPPs in relation to port facilities
The Authority's ability to deal with Maydon Wharf should not be undermined
change "necessary" to "desirable" in clause 67(1)(a)
clarify way in which leases may be unrelated to market conditions
change "excluded" to "restricted" in clause 67(1)(c)
Exclusion of Authority's liability for acts of a pilot
exclusion of liability should be retained
consistent with international practice
cost of additional insurance will increase port costs
the Authority's liability not otherwise limited, unlike ship owners
exclusions and limitations of liability are common
to provide some remedy to third party vessel, include provision deeming the pilot to be the servant of the owner or master of the vessel under pilotage
Regulations relating to exclusions and limitations of the Authority's liability
risk of extensive liability
detail should be included in regulations
SOME OTHER ISSUES IN THE BILL
Should provide for the transfer of port jurisdiction from the Initial to Interim Authority and from the Interim to Final Authority
Authority's obligation to assist in search, rescue and salvage should be limited to port limits
Wide functions of the Authority should not create additional obligations in law. [It may be difficult to defend this]
Regulator should have discretion not to investigate a particular complaint
The powers of the Regulator to make orders under clause 54 should be limited
[Should we include comment at paragraph 32.3?]
The Authority should be given a reasonable time to adjudicate on license applications (clause 57(6))
The Authority's power to inspect under clause 63 should be broadened
The regulation of off-shore cargo handling facilities should be consistent with the Petroleum Pipelines Bill
PPRA should license the operation of the facility;
the Authority should license the location of such facility;
Existing operator's licences must be granted prior to expiry of term of agreement
Substantial alternations in tariffs should be discussed with the NPCC
The descriptions of cargo and berth dues should be corrected
Training and licensing of pilots should be the Authority's function (and not SAMSA's)
The Bill should protect confidential information relating to operations of the Regulator