3. (1) (a) [Upon incorporation by the Shareholding Minister of a company known as National Ports Authority Limited, that company is established as the authority to own, manage, control and administer ports on behalf of the State.] Until the date on which the private company contemplated in subsection (2) is incorporated, National Ports Authority of South Africa -

(b) For the purposes of paragraph (a) any reference in this Act to the Authority, the Board of the Authority and any functionary of the Authority must be construed as a reference to National Ports Authority of South Africa and the divisional board and any functionary thereof, respectively, unless it is clearly inappropriate.

(2) [The authority is subject to the PFMA.] As soon as possible after the commencement of this Act and after consultation with the Shareholding Minister, Transnet must take the necessary steps for the incorporation of the National Ports Authority of South Africa as a private company with share capital.

3. The Registrar of Companies must -

1. register the memorandum and articles of association and incorporate National Ports Authority of South Africa under the name "National Ports Authority (Pty) Ltd" with Transnet as the sole member and shareholder;
2. issue to that entity the necessary documents to enable it to conduct business as a corporate entity.

(4) (a) Upon incorporation of National Ports Authority (Pty) Ltd, all assets, liabilities, rights and obligations of Transnet in respect of National Ports Authority of South Africa vest in National Ports Authority (Pty) Ltd., as provided for in section 27.

(b) Until the date on which National Ports Authority (Pty) Ltd is converted into a public company as contemplated in section 4, National Ports Authority (Pty) Ltd -

(i) is for all purposes deemed to be the Authority; and

(ii) must perform the functions of the Authority as if it were the Authority.

(c) For the purposes of paragraph (b) any reference in this Act to the Authority, the Board of the Authority and any functionary of the Authority must be construed as a reference to National Ports Authority of South Africa (Pty) Ltd and the board and any functionary of that company, respectively, unless it is clearly inappropriate.

(d) Any appointment to the board or of any functionary of National Ports Authority (Pty) Ltd made after the conversion contemplated in section 4 must be made in terms of this Act.

(5) (a) Notwithstanding subsections (2), (3) and (4), if the corporatisation of National Ports Authority of South Africa is not effected within three years from the date of commencement of this Act, the Shareholding Minister may cause National Ports Authority of South Africa to be incorporated as a public company, in which case section 4 applies with the necessary changes.

(b) The power contemplated in paragraph (a) must be exercised with the concurrence of the Minister.

(c) If the 5hareholding Minister acts under paragraph (a), all persons who immediately prior to the date of incorporation as a public company were in the employ of National Ports Authority of South Africa are deemed to have been transferred to the service of the Authority on that date without any interruption in their service, on terms and benefits no less favourable than those enjoyed by them immediately prior to their transfer.

(d) If the 5hareholding Minister acts under paragraph (a), section 27(2), (3), (4), (5), (6) and (7) apply with the changes required by the context.

Incorporation of Authority

4. (1) [The Shareholding Minister must take the necessary steps for the formation and incorporation of the Authority as a public company with a share capital, and the issuing of a certificate to commence business in terms of the Companies Act.] Notwithstanding section 32, 66, 190, 344(d) of the Companies Act -

(a) On a date after the incorporation of National Ports Authority (Pty) Ltd, and after consultation with the Minister and the board of that company, the Shareholding Minister must take the necessary steps to convert the company into a public company to be vested with the authority to own, manage, control and administer ports within the Republic of South Africa;

(b) on a date of conversion, the State shall be the only member and shareholder of the Authority;

(c) the Registrar of Companies must register the conversion and the company under the name "National Ports Authority Limited".

 

The State shall be the only member and shareholder of the Authority.

(3) The Shareholding Minister must on behalf of the State sign the memorandum and articles of association and all other documents necessary in connection with the formation and incorporation of the Authority as a company.

(4) Notwithstanding section 32 of the Companies Act, the Registrar of Companies must register the memorandum and articles of association and incorporate the Authority as a public company under the name "National Ports Authority Limited" with the State as its only shareholder, and issue to the Authority a certificate to commence business with the effect from the date of its incorporation as a company.

 

[(5)](2) The State's rights as a shareholder of the Authority are to be exercised by the Shareholding Minister.

 

connection with the formation and incorporation of the Authority as a company.

(4) Notwithstanding section 32 of the Companies Act, the Registrar of Companies must register the memorandum and articles of association and incorporate the Authority as a public company under the name "National Ports Authority Limited" with the State as its only shareholder, and issue to the Authority a certificate to commence business with effect from the date of its incorporation as a company.

(5) In order to give effect to the provisions of this section. the Registrar of Companies shall issue such directives and authorise such

deviations from the regulations promulgated in terms of the

Companies Act. and the documents prescribed in terms thereof, as the Registrar may consider necessary under the circumstances.

(6) No fees shall be payable in terms of the Companies Act in respect of the checking of documents, the reservation of the name. the

registration of the memorandum and articles of association and the issue of any documents contemplated in subsection (5) in respect of

the company incorporated in terms of subsection (1).

(7) The provisions of sections 66.190 and 344(d) of the Companies Act shall not apply to the Authority while the State is the only beneficial member and shareholder thereof

The State's rights as a shareholder of the Authority are to be exercised by the Shareholding Minister.

 

Authority's memorandum and articles of association

 

 

All persons who immediately prior to the date on which National Ports Authority (Pty) Ltd. is incorporated, were in the employ of National Ports Authority of South Africa are deemed to have been transferred to the service of National Ports Authority (Pty) Ltd. on that date without any interruption in their service, on terms and benefits no less favourable than those enioyed by them immediately prior to their transfer.

[(2)]L3 All persons who immediately prior to the date determined in terms of section 27(1) were in the employ of [Transnet's] National Ports Authority (Pty) Ltd. are deemed to have been transferred to the service of the Authority on that date without any interruption in their service, on terms and benefits no less favourable than those enjoyed by them immediately prior to their transfer.

For the purpose of the application of the Income Tax Act, 1962 (Act No.58 of 1962), to the transfer of employees contemplated in [subsection(2)] subsections (2) and (3), it is deemed that the Authority [and Transnet], National Ports Authority (Pty) Ltd. and National Ports Authority of South Africa are the same employer.

Transfer of ports, land and other rights and obligations [to Authority]

27. (1) (a) On a date after the incorporation [date,] of National Ports Authority (Pty) Ltd determined by the Shareholding Minister by notice in the Gazette, [the] National Ports Authority (Pty) Ltd becomes the successor to National Ports Authority [a division of Transnet] of South Africa

3. The date contemplated in paragraph (a) must be determined after consultation with the Minister.

2. On the date determined in terms of subsection (1) [the Authority] National Ports Authority (Pty) Ltd acquires the business of [Transnet's] National Ports Authority [Division] of South Africa as a going concern and-

(a) all land and immovable property relating to the business of [that Division] National Ports Authority of South Africa and owned by Transnet vest in [the Authority] National Ports Authority (Pty) Ltd; and

(b) all movable property and all liabilities, rights and obligations of Transnet relating to [that Division] National Ports Authority of South Africa, as determined by the Shareholding Minister [in the notice contemplated in subsection (1)], vest in [the Authority] National Ports Authority (Pty) Ltd.

[(3) The Authority holds all such property on behalf of the State.]

[(4)](3) Upon the vesting contemplated in subsection (2), the Board of the National Ports Authority must inform the National Treasury in the manner contemplated in section 54(2) of the PFMA.

[(5)](4) On the date contemplated in subsection (1) and arising out of the vesting in terms of subsection (2), and without derogating from the generality of that subsection, [the Authority] National Ports Authority (Pty) Ltd-

(a) becomes the owner of all land and immovable property situated within the port [limits including the bed of the waters within the port limits measured to the high water mark];

(b) becomes the owner of all lighthouses and other navigational aids;

(c) is substituted as the litigating party for Transnet in all pending litigation relating to [ports] the business of the National Ports Authority of South Africa, including arbitrations and mediations, as if it had been the litigant from the beginning; and

(d) is substituted as the contracting party for Transnet in all contracts relating to [ports] the business of the National Ports Authority of South Africa as if the Authority had been the contracting party from the beginning.

[(6)](5) Subsections (2) and [(5)] 4 are not to be interpreted as conferring on the Authority a right of ownership in-

(a) movable or immovable property which, before the [said] date determined in terms of subsection (1), was vested in a person other than [Transnet] National Ports Authority (Pty) Ltd;

(b) telecommunication facilities or petroleum pipelines of Transnet Limited or any of its Divisions.

[(7)](6) Despite section 5 of the State Land Disposal Act, 1961 (Act No. 48 6f 1961), and the provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), a registrar of deeds referred to in section 102 of the latter Act must, on submission of a certificate by the Shareholding Minister that land has vested under this section, make such entries and endorsements free of charge as the registrar considers necessary in any appropriate register in order to register the transfer of such land in the name of the Authority.

[(8)](7) A registrar of deeds must, on submission of a certificate by the Shareholding Minister that a servitude, other real right or lease has vested under this section, make such entries and endorsements as the registrar considers necessary in or on any appropriate register in order to register such vesting in the name of the Authority.

(8) This section applies equally on the date the National Authority (Pty) Ltd is incorporated as a private company, and for that purpose -

1. the date determined in terms of the subsection (1) must be construed as the date of

 

incorporation of the National Ports Authority (Pty) Ltd;

2. any reference in subsections (1) to (7) to the Authority must be construed as a reference to National Ports Authority (Pty) Ltd; and
3. any reference in subsections (1) to (7) to National Ports Authority (Pty) Ltd must be construed as a reference to the National Ports Authority of South Africa;
4. the reference in subsections (3) to the Board must be construed as a reference to the Board of National Ports Authority (Pty) Ltd.

(9) Despite any provision in any other law to the contrary, the Authority, National Ports Authority of South Africa and Transnet are exempt from any value-added tax, stamp duties, transfer duties or registration fees payable in terms of any law in relation to the transfer of assets or rights (including shares) in terms of this Act.

Functions of Regulator

30. (1) The Regulator must -

1. hear complaints and appeals relating to any prevent any abuse of power by the Authority. And ensure equality of access to the ports and to the provision of port services;
2. monitor the business relationship between Transnet and [the Authority] National Ports Authority (Pty) Ltd whilst that company is a subsidiary of Transnet to ensure that Transnet does not derive an unfair advantage over the Authority and other transport companies;
3. ensure that revenues generated by the Authority are used to the benefit of the Authority and its customers;

[(d) ensure that access to ports and port facilities are provided in a non-discriminatory, fair and transparent manner;

1. issue directives to the Authority

[(f)(d) ensure that small and medium sized enterprises owned by historically disadvantages groups have an equitable opportunity to participate in the operation of facilities in the ports environment;

2. ensure intra and inter port competitiveness;

[(g)](f) [seek to] negotiate and conclude an agreement with the Competition Commission established by section 19 of the Competition Act, 1998 (Act No. 89 of 1998), to co-ordinate and harmonise the exercise of jurisdiction over competition matters, and to ensure consistent application of the principles of this

Act;

[(h)](g) advise and receive advice from any other regulatory authority;

9. consider tarrifs as contemplated in section 72 of this Act. approve in a prescribed manner and review tarrifs set by the Authority;
10. review the decisions of the Authority

(2) For purposes of subsection (1) the Regulator may -

1. subject to the payment of the [prescribed] filing fees contemplated in subsection (3)(d), if any, consider any complaint submitted in a prescribed manner or matter submitted to it; and
2. take such steps as may be necessary in the circumstances.

(3)The regulator may, with the concurrence of the Minister, and by notice in the Gazette, issue directives not in conflict with this Act for matters relating to the proper performance of the functions of the Regulator, including -

1. forms to be used when complaints and appeals a matter is submitted to the Regulator;
2. time periods within which matters complaints or appeals must be submitted;
3. information to be supplied when a complaint or appeals matter is submitted;
4. filing fees for the lodging of matters with the Regulator;

[(d)](e) access by the Regulator to confidential information of the Authority;

[(e)](f) manner and form of participation in proceedings of the Regulator;

[(f)](g) procedures regarding the running of the business of the Regulator.

3. The Regulator may enter into an agreement with any other statutory body in order to coordinate and harmonise the performance of functions

[(4)](5) Whenever necessary or required by the Minister, the Regulator must report to the Minister on any matter relating to the application or purposes of this Act.

[(5)](6) The Regulator must, as soon as practicable after 31 March of each year but not later than 30 June of each year, submit to the Minister a report giving particulars regarding the activities of the Regulator during the year which ended on the first-mentioned date.

[(6)](7) The Minister must table in Parliament any report -

1. contemplated in subsection [(4)](5), if such report deals with a substantial matter relating to the application or purposes of this Act; and
2. contemplated in subsection [(5)](6).

[(7)](8) Any report referring to subsection [(6)](7) must be tabled -

1. within 10 business days after receiving the report from the Regulator; or
2. if Parliament is not then sitting, within 10 business days after the commencement of the next session.

Members of Regulator

31. (1) (a) The Regulator consists of a chairperson and of not more than four other members appointed by the Minister for a period of up to five years at a time.

(b) The members of the Regulator may be re-appointed.

(2) The members of the Regulator must[-

COMMERCIAL ASPECTS

[49.]71. Notwithstanding any provisions of this Act from the date that the Authority becomes the successor to the National Ports Authority (Pty) Ltd as contemplated in section 27(1O)~he funds and assets of the Authority may only be used for the performance of the Authority's functions and activities relating thereto, including the maintenance of port infrastructure and the management and development of ports.

[5O.)72. (1)(a) The Authority must, with the approval of the [Minister, publish an annual tariff book, which must contain] Ports Regulator determine tariffs for services and facilities offered by the Authority and annually publish a tariff book containing those tariffs.

(b) The Authority may, with the approval of the Ports Regulator amend the tariff book whenever it is necessary to do so.

(2) The Authority must, prior to any substantial alteration of a tariff, consult with the National Port Consultative Committee.

91 (1) No levy, tax. transfer duty. stamp duty or any other charges or fees of any nature whatsoever imposed by statute shall be paid

by any one of those involved in respect of any transfer of any assets or rights in terms of or Pursuant to the provisions of

[sections 3.4. [51. [101.26 and 271.

(2) Without detracting from the generality of subsection (1). Transnet and the Authority shall be exempt from liability for the payment of any value added tax. capital gains tax, income tax or other tax. stamp duties. transfer duties or registration fees payable in terms of any statute in respect of any transfer of any assets or rights in terms of or Pursuant to the provisions of [sections 3.4. [51. [101.26 and 27].

(3) Transnet and the Authority shall be exempt from liability for the payment of the fees referred to in sections 63(2) and 75(3) of the Companies Act and of any fees payable in terms of the Stamp Duties Act. 1968, in respect of the creation and issue of-

(a) the shares to Transnet contem~lated in sections 3 and 27.

(b) the shares to the State contemplated in section 4.

(4) The exemptions for which provision is made in this section shall apply-

(a) to Transnet only for as long as the State holds all the issued shares of Transnet;

(c) to a subsidiary of Transnet or the Authority. as the

case may be. only for as long as -

(I) the requirements of paragraph (a) or

(b) above have been met; and

(ii) Transnet or the Authority. as the case

may be. whether on its own or

together with the State. holds all the

issued shares of the subsidiary

concerned].