REPUBLIC OF SOUTH AFRICA

 

 

TRANSPORT AGENCIES GENERAL LAWS AMENDMENT BILL,2007

 

 

 

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(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No.       of       )   (The English text is the official text of the Bill)

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(MINISTER OF TRANSPORT)

 

[B   - 2007]

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070605SE

 

GENERAL EXPLANATORY NOTE:

 

[                        ]          Words in bold type in square brackets indicate omissions from existing enactments.

___________                 Words underlined with a solid line indicate insertions in existing enactments.

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B I L L

 

To amend—

  • the Cross Border Road Transport Act, 1998, so as to provide anew for the appointment of Board members and the Chief Executive Officer by the Minister; and to provide for the conclusion of a performance agreement between the Minister and the Agency;
  • to amend the South African Maritime Safety Authority Act, 1998, so as to provide for the conclusion of a performance agreement between the Minister and the Authority; to provide anew for the appointment of Board members and the Chief Executive Officer by the Minister; to provide for representation by the Department of Transport on the Board, to facilitate the filling of an occasional vacancy on the Board;  and to allow the Minister to temporarily extend the term of office of a member on an outgoing Board, if necessary;
  • to amend the South African National Roads Agency Limited and National Roads Act, 1998, so as to provide anew for the appointment of the Chief Executive Officer by the Minister;
  • to amend the Transport Appeal Tribunal Act, 1998, so as to provide anew for the appointment of the members to the Tribunal by the Minister;
  • to amend the South African Civil Aviation Authority Act, 1998, so as to provide for representation by the Department of Transport on the Board and for the appointment of the Chief Executive Officer by the Minister; and to facilitate the filling of occasional vacancies on the Board;
  • to amend the Road Traffic Management Corporation Act, 1999, so as to provide anew for the appointment of Board members by the Shareholders Committee;
  • to amend the National Railway Safety Regulator Act, 2002, so as to provide anew for the appointment of Board members by the Minister and to allow the Minister to temporarily extend the term of office of a member on an outgoing Board, if necessary;

and to provide for matters connected therewith.

 

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: —

 

 

 

                       

Amendment of section 5 of Act 4 of 1998

 

            1.         Section 5 of the Cross-Border Road Transportation Act, 1998, is hereby amended by—

(a)        the deletion in subsection (2) of the word "and" at the end of paragraph (b) and the insertion after that paragraph of the following paragraphs:

(bA)     the Chief Executive Officer, by virtue of holding that office;

(bB)      if the Minister specifies an office in the Department for the purposes of this subsection, the person for the time being holding that office;  and”;

(b)        the substitution in subsection (2) for paragraph (c) of the following paragraph:

"(c)       not more than eight other members, of whom not more than—

(i)         two must be appointed on account of their expertise in cross-border road transport of freight;  and

(ii)         two must be appointed on account of their expertise in cross-border road transport of passengers."; 

(c)        the substitution for subsection (3) of the following subsection:

                        "(3)       (a)        The members of the Board contemplated in subsection (2)(c)(i) and (ii) must be persons who are not employed by the State.

                                    (b)        Before the members of the Board contemplated in subsection (2)(a), (b) or (c) are appointed, the Minister must, through the media, invite nominations from any person or body with an interest in the cross-border road transport industry or the labour and consumer sector.

                                    (c)        Subject to subsection (2)(c)(i) and (ii), the Board must include members who—

(i)         have experience in business;

(ii)         have legal knowledge and corporate governance experience; or

(iii)        are knowledgeable about the cross-border road transport  industry, labour and consumer matters, financial management or economic analysis.”;  and

(d)                 the substitution for subsection (4) of the following subsection:

                        “(4)       The Minister may nominate a representative to participate in a non-voting capacity in the deliberations of any meeting of the [Board or] Regulatory Committee.”.

 

 

 

 

 

Amendment of section 7 of Act 4 of 1998

 

2.                   (a) Section 7 of the Cross-Border Road Transportation Act, 1998 is hereby amended by the substitution of subsection (3) of the following subsection:

            “(3) The members of the Board including the Chairperson    and the Deputy Chairperson are eligible for re-appointment for a further period not exceeding three years 

(b) Section 7 of the Cross-Border Road Transportation Act, 1998 is hereby amended by the addition of the following subsection:

                        (4)       Notwithstanding subsections (1), (2) and (3), the Minister may extend the term of office of any member of the Board by such further period as may be necessary to appoint a new member to the Board.”

 

Amendment of section 10 of Act 4 of 1998

2A.  Section 10 of the Cross Boarder Road Transportation Act, 1998 is hereby amended by the substitution of section 10 for the following section:
“(10) Notice of appointment. – The Minister shall within 30 days from the date of appointment of a member or alternate member of the Board, causes a notice to be published in a Government Gazette.

 

Substitution of section 14 of Act 4 of 1998

 

            3.         The following section is hereby substituted for section 14 of the Cross-Border Road Transportation Act, 1998:

 

"Staff of Agency

 

            14.        (1)        (a)        The Minister must appoint the Chief Executive Officer after  consideration of the recommendation of the Board.

                                    (b)        The Chief Executive Officer holds office on such terms and conditions including remuneration and allowances as the Minister, in consultation with the Minister of Finance and on the recommendation of the Board, may determine in writing.

                                    (c)        The Chief Executive Officer holds office for a period not exceeding five years as specified in the letter of appointment, and is eligible for reappointment.

                                    (d)        The Chief Executive Officer manages the Agency subject to the control and directions of the Board.

                        (2)        The Chief Executive Officer must, subject to the approval of the Board, appoint such other staff as may be necessary to provide the required administrative, secretarial, research and technical assistance to the Agency and the Board.

                        (3)        The staff of the Agency receives such remuneration, allowances and other employment benefits as the Board may determine in consultation with the Minister and the Minister of Finance.".

 

Insertion of Section 22A in Act 4 of 1998

 

           4.         The following section is hereby inserted after section 22 of Cross-Border Road Transport Act, 1998:

 

"Performance Agreement

 

            22A.     (1)        The Minister and the Agency must enter into a written performance agreement relating to—

(a)        the State’s requirements in respect of the Agency’s scope of business, efficiency and financial performance, and achievement of objectives;

(b)        the principles to be followed by the Agency for the purposes of business planning;

(c)        such measures as may be necessary to protect the financial soundness of the Agency;

(d)        the principles to be followed at the end of a financial year in respect of any surplus in the accounts of the Agency; and

(e)        any other matter relating to the performance of the Agency’s functions under this Act.

                        (2)        The Minister and the Agency may in writing amend the performance agreement from time to time.

                        (3)        The Minister must publish the performance agreement  in the Gazette and any amendment thereto must be so published at least 30 days prior to that amendment coming into operation.

                        (4)        A copy of the performance agreement must be open to inspection by the public at the head office of the Agency during business hours.

                        (5)        The Minister and the Agency must, before the finalisation of the performance agreement or amendment thereof, on any matter that may affect them, consult with the relevant stakeholders in the cross-border transport industry.

                        (6)        Failure by the Agency to comply with any provision of the performance agreement does not affect the validity or enforceability of any agreement entered into, or any right, obligation or liability, acquired or incurred by the Agency.”.

 

Insertion of section 6A in Act 5 of 1998

 

            5.         The following section is hereby inserted after section 6 of the South African Maritime Safety Authority Act, 1998:

 

"Performance agreement

 

            6A.       (1)        The Minister and the Authority must enter into a written performance agreement relating to—

(a)        the State’s requirements in respect of the Authority’s scope of business, efficiency and financial performance, and achievement of objectives;

(b)        the principles to be followed by the Authority for the purposes of business planning;

(c)        such measures as may be necessary to protect the financial soundness of the Authority;

(d)        the principles to be followed at the end of a financial year in respect of any surplus in the accounts of the Authority; and

(e)        any other matter relating to the performance of the Authority’s functions under this Act.

                        (2)        The Minister and the Authority may in writing amend the performance agreement from time to time.

                        (3)        The Minister must publish the performance agreement in the Gazette and any amendment thereto must be so published at least 30 days prior to that amendment coming into operation.

                        (4)        A copy of the performance agreement must be open to inspection by the public at the head office of the Authority during business hours.

                        (5)        The Minister and the Authority must, before the finalisation of the performance agreement or amendment thereof, on any matter which may affect them, consult with the relevant stakeholders in the maritime industry.

                        (6)        Failure by the Authority to comply with any provision of the performance agreement does not affect the validity or enforceability of any agreement entered into, or any right, obligation or liability, acquired or incurred by the Authority.”.

 

Amendment of section 12 of Act 5 of 1998

 

            6.         Section 12 of the South African Maritime Safety Authority Act, 1998, is hereby amended by—

(a)        the insertion in subsection (1) after paragraph (b) of the following paragraph:

"(bA)     if the Minister specifies an office in the Department for the purposes of this subsection, the person for the time being holding that office;"; and

(b)        the substitution for subsection (4) of the following subsection:

“(4)       The Minister may appoint a person as a member only if the Minister is satisfied that the person has suitable expertise in one or more of the following:

(a)                 shipping industry;

(b)                 maritime law;

(c)                 organise labour in maritime

(d)                 corporate governance;

(e)                 environmental management.”;

( c)       the insertion  after subsection (4) of the following subsection

(4A) The Minister shall within 30 days from the date of appointment of a member or alternate member of the Board, causes a notice to be published in a Government Gazette.

 

Substitution of section 13 of Act 5 of 1998

            7.         The following section is hereby substituted for section 13 of the South African Maritime Safety Authority, 1998:

 

"Period of office of members

 

            13.        (1)        Subject to this Chapter, a member holds office for a period of [five] three years as from the date of appointment of such member, and may be re-appointed for a further period not exceeding three years, in which case the procedure contemplated in section 12(3) does not apply.

                        (2)        Notwithstanding subsection (1), the Minister may extend the term of office of any member by such further period as may be necessary to finalise the appointment of a new Board.”.

 

Amendment of section 15 of Act 5 of 1998

 

            8.         Section 15 of the South African Maritime Safety Authority Act, 1998, is hereby amended by the substitution for subsection (1) of the following subsection:

                        “(1)       [Subject to section 12(2) and (4)] A member may not engage in any paid employment that will conflict with the proper performance of his or her functions as a member.".

 

Amendment of section 22 of Act 5 of 1998

 

            9.         Section 22 of the South African Maritime Safety Authority Act, 1998, is hereby amended by—

(a)        the substitution for subsection (1) of the following subsection:

                        (1)       (a)        The Minister must appoint a Chief Executive Officer after consideration of the recommendation of the Board.

                                    (b)        The Chief Executive Officer holds office on such terms and conditions including remuneration and allowances as the Minister, in consultation with the Minister of Finance and on the recommendation of the Board, may determine in writing.”;

(b)        the deletion of subsections (5) and (6).

 

Repeal of section 24 of Act 5 of 1998

 

            10.        Section 24 of the South African Maritime Safety Authority Act, 1998, is hereby repealed.

 

Substitution of section 25 of Act 5 of 1998

 

            11.        The following section is hereby substituted for section 25 of the South African Maritime Safety Authority Act, 1998:

 

 

"Resignation

 

            25.        The Chief Executive Officer may resign by notice in writing to the Board and the Minister."

 

Repeal of section 11 of Act 7 of 1998

 

            12.        Section 11 of the South African National Roads Agency Limited and National Roads Act, 1998, is hereby repealed.

 

Amendment of section 12 of Act 7 of 1998

 

            13.        Section 12 of the South African National Roads Agency Limited and National Roads Act, 1998, is hereby amended by—

(a)        the substitution for subsection (2) of the following subsection:

            (2)       The Board consists of—

(a)        the Chairperson;

(b)        if the Minister specifies an office in the Department for the purpose of this subsection, the person for the time being holding that office;

(c)        a senior officer of the Department of Finance nominated by the Minister of that Department;

(d)        the Chief Executive Officer, by virtue of holding that office; and

(e)        four other persons having special qualifications, skills, expertise or experience in matters concerning national roads, corporate governance, financial management, business or operations of the Agency.";

(b)        the substitution for subsection (3) of the following subsection:

                        (3)       (a)        The members of the Board contemplated in subsection (2)(a) and (e) are appointed by the Minister.

                                    (b)        Before the members of the Board contemplated in subsection 2(a) and (e) are appointed, the Minister must, through the media, invite nominations from any person or body with an interest in national roads.”.

 

(c) The Minister must within 30 days from the date of appointment of a member or alternate member of the Board, causes a notice to be published in a Government Gazette.

 

 

Amendment of section 13 of Act 7 of 1998

 

            14.        Section 13 of the South African National Roads Agency Limited and National Roads Act, 1998, is hereby amended by—

(a)        the substitution in subsection (1) for paragraph (a) of the following paragraph:

"(a)       holds office for a period of three years as from the date of appointment of such member, and may be re-appointed for a further period not exceeding three years, in which case the procedure contemplated in section 12(3)(b) does not apply;  and";

(b)        the addition of the following subsection:

                        "(5)       Notwithstanding subsection (1)(a), the Minister may extend the term of office of any member of the Board by such further period as may be necessary to finalise the appointment of a new Board.".

 

Amendment of section 14 of Act 7 of 1998

 

            15.        Section 14 of the South African National Roads Agency Limited and National Roads Act, 1998, is hereby amended by the substitution in subsection (3) for paragraph (a) of the following paragraph:

                        (a)       A vacancy in the [office of the appointed member] Board must be filled [by the Minister] as soon as possible through the appointment of another member who meets the requirements stipulated in [section 12(3)] section 12 for the office that has become vacant.".

 

Amendment of section 19 of Act 7 of 1998

 

            16.        Section 19 of the South African National Roads Agency Limited and National Roads Act, 1998, is hereby amended by the substitution for subsection (2) of the following subsection:

                        “(2)       (a)       The Minister must appoint the Chief Executive Officer after consideration of the recommendation of the Board.

                                    (b)        The Chief Executive Officer holds office for a period not exceeding five years as specified in the letter of appointment, and is eligible for re-appointment.

                                    (c)        The Chief Executive Officer holds office on such terms and conditions including remuneration and allowances as the Minister, in consultation with the Minister of Finance and on the recommendation of the Board, may determine in writing.”.

 

Amendment of section 4 of Act 39 of 1998

 

            17.        Section 4 of the Transport Appeal Tribunal Act, 1998, is hereby amended by—

(a)        the substitution in subsection (2) for paragraph (b) of the following paragraph:

(b)       through the media, invite any person or body that are interested to nominate persons who comply with the criteria contemplated in paragraph (a) for appointment as members to the Tribunal.”; and

(b)        the deletion of subsection (3).

 

Amendment of section 8 of Act 40 of 1998

 

            18.        Section 8 of the South African Civil Aviation Authority Act, 1998, is hereby amended by—

(a)        the substitution for subsection (2) of the following subsection:

                        “(2) The Board consists of not more than seven members, of

                           whom-

(a)                 one must be the non-executive chairperson;

(b)                 if the Minister specifies an office in the Department for the purposes of this subsection, the person for the time being holding that office;"; and

( c)     the chief executive officer by virtue of that office.”. 

(d) four other persons appointed in terms of subsection (2A)

(b)        the insertion after subsection (2) of the following subsection:

                        “(2A)     The members of the Board contemplated in subsection

 (2)(a) and (d) are appointed by the minister.

                        “(2B)     The Minister may appoint a person as a member only if     the Minister is satisfied that the person has suitable expertise in one or         more of the following:

(a)                 civil aviation;

(b)                 corporate governance;

(c)                 environmental management;

(d)                 organised professionals and labour;

(e)                 economic analysis;

(f)                   aviation infrastructure

(c)        By the deletion of  subsection (3)

(d)        the substitution for subsection (6) of the following subsection:

                        (6)(a) Before the members of the Board contemplated in subsection (2)(a)and (d) are appointed, the Minister must, through the media, invite nominations from any person or body with an interest in the aviation industry or the labour and consumer sectors.”.

(e) By addition of the following subsection

The Minister shall within 30 days from the date of appointment of a member or alternate member of the Board, causes a notice to be published in a Government Gazette.

Amendment of section 9 of Act 40 of 1998

 

            19.        Section 9 of the South African Civil Aviation Authority Act, 1998, is hereby amended by—

(a)        the substitution for subsection (1) for the following  subsection:

                        (1)       An appointed member of the Board—

(a)        holds office for a period not exceeding three years, on the conditions determined by the Minister upon appointment of such member;  and

(b)        may be re-appointed for a further period not exceeding three years, in which case the procedure contemplated in section 8(6) does not apply.”; and

(b)        the addition of the following subsection:

                        (8)       Notwithstanding subsection (1), the Minister may extend the term of office of any appointed member by such further period as may be necessary to finalise the appointment of a new Board.”.

 

Amendment of section 11 of Act 40 of 1998

 

            20.        Section 11 of the South African Civil Aviation Authority Act, 1998, is hereby amended by—

(a)        the substitution for subsection (1) of the following subsection:

(1)       (a)        The Minister must appoint the Chief Executive Officer after consideration of the recommendation of the Board.

 

                        (b)        The Chief Executive Officer holds office for a period not exceeding five years as specified in the letter of appointment, and is eligible for reappointment.

                                    (c)        The Chief Executive Officer holds office on such terms and conditions including remuneration and allowances as the Minister, in consultation with the Minister of Finance and on the recommendation of the Board, may determine in writing.”; and

(b)        the deletion of subsection (2).”.

 

 

 

 

Amendment of section 8 of Act 20 of 1999

 

21.               Section 8 of the Road Traffic Management Corporation Act, 1999, is hereby amended by—

(a)        the substitution for subsection 2 of the following subsection

                                       “(2) the appointed members of the Board must be persons from the public and private sectors with proven expertise and competency in the field of corporate governance, information  technology and road traffic management.

(b)        the substitution for subsection 10 of the following subsection:

                        (10)      Before the members of the Board are appointed, the Shareholders Committee must, through the media, invite any person or body to nominate persons who comply with the criteria contemplated in subsection (2).";

(c)        the substitution for subsection (12) of the following subsection:

                        (12)      An appointed member—

(a)        holds office for a period not exceeding three years, on the conditions determined by the Shareholders Committee on appointment of such member;  and

(b)        may be re-appointed for a further period not exceeding three years, in which case the procedure contemplated in subsection (10) does not apply.”; and

(d)        by the insertion after subsection 12 of the following subsection:

                        (12A)   Notwithstanding subsection (12), the Shareholders Committee may extend the term of office of any member of the Board for such further period as may be necessary to finalise the appointment of a new Board.”.

 

Amendment of section 8 of Act 16 of 2002

 

            22.        Section 8 of the National Railway Safety Regulator Act, 2002, is hereby amended by—

(a)        the substitution in subsection (5) for paragraph (b) of the following paragraphs:

                        "(b)       The Board consists of—

(i)                   the Chief Executive Officer, by virtue of holding that office;

(ii)                 if the Minister specifies an office in the Department for the purposes of this subsection, the person for the time being holding that office;

 (iii)       the Directors-General of the Departments, Labour and Safety and Security;  and

(iv)        subject to paragraph (a), not more than nine other persons representing the railway industry, organised labour and the community.

                        (c)        A Director-General contemplated in paragraph (b)(iii) may designate any senior official in his or her department to act in his or her stead as member of the Board.";

(b)        the substitution for of subsection (7) of the following subsection:

                        (7)(a) Before the members of the Board are appointed, the Minister must, through the media, invite any person or body that are interested to nominate persons who comply with the criteria contemplated in subsection (5).”;

(7A) by the addition of the following section after subsection (7)(a)

 (7A)The Minister must within 30 days from the date of appointment of a member or alternate member of the Board, causes a notice to be published in a Government Gazette.

 

(c)        the addition to subsection (13) of the following paragraph:

                        (c)       Notwithstanding paragraph (a), the Minister may extend the term of office of any member of the Board for such further period as may be necessary to finalise the appointment of a new Board.";  and

(d)        the substitution in subsection (14) for paragraph (a) of the following paragraph:

                        "(a)       If a director dies or vacates office, the Minister may [, subject to subsection (7),] appoint another person as a director.”

 

 Amendment of section 9 of Act 16 of 2002

 

            23.        Section 9 of the National Railway Safety Regulator Act, 2002, is hereby amended by—

(a)        the substitution for subsection (1) of the following subsection:

“(1)       The Minister must appoint the Chief Executive Officer after consideration of the recommendation of the Board”.

Short title

 

            23.        This Act is called the Transport Agencies General Laws Amendment Act, 2007, and commences on a day fixed by the President by Proclamation in the Gazette.