Transport Appeal Tribunal A/B & Marine Pollution (Prevention of Pollution from Ships) A/B: Negotiating Mandates and DoT & PLA Input

Meeting report

The Chairperson stated that the negotiating mandates of the two Bills were on the agenda for consideration. He called on Members to present the negotiating mandates on behalf of their provinces.

Negotiating Mandates: Transport Appeal Tribunal Amendment Bill [B8B–2022]
The permanent delegates to the NCOP read the mandates of their provinces into the record. The Chairperson read the mandates of provinces on behalf of absent delegates.

Eastern Cape (read by Mr M Rayi)
The Eastern Cape Legislature voted in favour of the Bill on 29 April 2024 and mandated the Eastern Cape permanent delegate to the NCOP to negotiate in favour of the Bill.

General Comment: The Portfolio Committee's public hearings report highlights other issues raised by stakeholders that the Department of Transport ought to consider seriously.

Free State (read by Ms M Moshodi)
The Free State Legislature deliberated on the Bill on 12 March 2024 and voted in favour of the Bill.

Gauteng (ready by Mr M Dangor)
The Gauteng Legislature deliberated on the Bill on 11 March 2024 and supported the TAT Amendment Bill subject to the amendments below being considered:

Clause 2; Proposal to retain consultation with the MECs
Clause 6(e), section 12(4); The TAT should take cognisance of the merits of each case
Clause 8; Proposal of punitive measures to deter parties from intentionally delaying proceedings
Clause 9; Proposal to add removal of officers to this clause or in regulations.

KwaZulu-Natal (read by Mr T Brauteseth)
The KwaZulu-Natal (KZN) Legislature met on 22 March 2024 and agreed to mandate the provincial delegation to the NCOP to support the Bill.

Mr Brauteseth found it confusing that the Committee was dealing with negotiating mandates but the KZN mandate appeared to be a final mandate. He was concerned that it could be a stumbling block when a negotiating mandate is styled as a final mandate.

The Chairperson noted the point and said it would be brought to the attention of the province in the report on consolidated negotiated mandates that would be sent back to the provincial legislatures.

Limpopo (read by the Chairperson)
The Limpopo Legislature deliberated on the Bill on 26 March 2024 and mandated its permanent delegate to the NCOP to negotiate in favour of the Bill considering the inputs and comments from the public in the attached report.

Mpumalanga (read by Ms S Boshoff)
Having considered the TAT Amendment Bill on 12 March 2024, the provincial legislature conferred on the permanent delegate representing the Mpumalanga Province in the NCOP the mandate to negotiate in favour of the Bill.

Northern Cape (read by the Chairperson)
The Northern Cape Legislature deliberated on the Bill on 7 March 2024 and voted to support the TAT Amendment Bill.

North West (read by the Chairperson)
The North West Legislature deliberated on the Bill on 29 February 2024 and voted to support the Bill.

Western Cape (read by the Chairperson)
Having considered the subject of the TAT Amendment Bill on 11 March 2024, the provincial legislature conferred on the Western Cape delegation in the NCOP, the authority to support the Bill.

Discussion
Dr Anneke Clarke, Content Advisor, advised the Chairperson that an updated mandate had been received from the North West legislature.

The Chairperson read the additional comments from the North West legislature, i.e. the Bill must have an expression on the following:

The Bill should also provide for the TAT to be centralised to offices in municipalities to expedite dispute resolution and for the National Department of Transport to speed up the process of opening an office in the province and all the districts.

Mr Rayi responded to Mr Brauteseth's comment regarding the KZN mandate. He stated that all of the mandates refer to a vote in the legislature and that there was nothing wrong with the manner in which the provinces had structured them. The mandates are in line with the schedules in the Mandating Procedures of Provinces Act 52 of 2008.
 
The Chairperson remarked that Mr Rayi’s explanation should allay the fear expressed by Mr Brauteseth. The role of the permanent delegates in the NCOP is to ensure the interface during the negotiating process. He called on the Parliamentary Legal Advisor and the representative from the Department to reflect on the negotiating mandates of the provinces.
 
Provincial Mandates: Proposed Amendments
Adv Mongezi Matebese, Head: TAT Secretariat, DOT, said the Department had received comments and amendments from the Western Cape government, and the North-West and Gauteng Provinces.

General comment
Additional comments received from the Eastern Cape Province about delays in the resolution of disputes were similar to matters raised by the North-West Province The provinces proposed that the Bill provides for the TAT to be centralised and to have offices in municipalities. Additionally, the National Department should speed up the process of devolving TAT offices to local and provincial spheres of government. The Department did not agree with the proposed amendments for the following reasons:

The TAT structure is a part-time forum and the Minister appoints its members on a three-year term;

In terms of the Principal Act, the TAT Chairperson decides on the place and time for the TAT sittings, taking into account provincial appeals received;

The TAT hears the appeals within the Republic;

The Department provides secretariat duties for the TAT and the sittings are heard all over the country when necessary; and

Lodgement of the appeal is done through email, post or fax, which enables the prompt lodgement of the appeal whenever it has originated within the provinces.

Clause 1: Section 1 of the Principal Act - Definitions
The Western Cape government submitted the following proposals:

the amendment of subclause 1(c), i.e. a decision to cancel an operating license or permit in terms of section 78 of the National Land Transport Act (NLTA). The Department agreed with the proposed amendment provision in subclause 1(c).

the expansion of the definition of ‘act, direction and decision’. The Department is of the view that all provincial operating licensing boards (POLB) would migrate to the provincial regulatory entity (PRE) in terms of section 23 of the NLTA. A legal provision cannot be provided to accommodate one situation that will eventually migrate consequently, the Department did not agree with the proposed amendment in this regard.

the deletion of the definition of ‘board’ in light of the above comment. The Department did not agree with this proposal as alluded to in the preceding paragraph.

Clause 2: Section 4 of the Principal Act - Constitution of Tribunal
The Gauteng Province proposed that consultation with the MECs be retained to maintain some level of consultation with provinces in line with the principles of cooperative governance, oversight and transparency. The Department agreed and had already removed section 4(1) from the Amendment Bill and retained the Principal Act wording.

Clause 4: Section 9 of the Principal Act – Sittings of Tribunal
The Western Cape Province submitted the following proposals:

the retention of section 9(1) of the Act. The Department had no objection to retaining section 9(1) of the Act.

the insertion of a subsection (4) to provide for the Director-General, in consultation with the Chairperson, to determine a year plan for the number of sittings for the upcoming year, the estimated number of hours per sitting and the estimated preparation time for sittings. The Department agreed with the insertion of this new subsection (4).

Clause 5: Section 11 of the Principal Act – Fees in respect of appeals
The Western Cape Province submitted the following proposals:

The proposed wording, ‘or any relevant transport legislation,’ should be amended to ‘or any relevant national or provincial transport legislation.’ The Department agreed with the suggested wording.

Clause 6: Section 12 of the Principal Act – Persons not qualified to be members
The Gauteng Province proposed that, under clause 6(e)—section 12(4) (a), the TAT should consider the merits of the different cases and implementation possibilities. The Department agreed with the proposal.

Clause 7: Section 13 of the Principal Act – Applications for condonation and suspension
The Western Cape Province proposed that consideration be given to whether there ought to be exceptional circumstances which an applicant could utilise as a procedural tool to argue against the automatic suspension of a decision. The Department is sponsoring a proposal framed as follows: ‘provided that such act, direction or decision is automatically suspended if the appeal was lodged within a period of 30 days after the date on which such act, direction or decision was communicated to the appellant except where the respondent opposes such a suspension.’

Clause 8: Section 14 of the Principal Act – Vacancies in Tribunal
The Gauteng Province proposed that punitive mechanisms be intertwined either in this clause or in regulations to deter parties from intentionally delaying proceedings. The Department advised that the soon-to-be-drafted regulations would address this process.

The Western Cape Province proposed that the error in line 37 be corrected as follows; ‘… delays or [actions] could cause substantial prejudice’. The Department disagreed that there was an error in line 37.

Clause 9: Section 16 of the Principal Act – Sittings of Tribunal
The Gauteng Province proposed adding instances where officers may be removed from office to this clause or in regulations. The Department advised that the officials would be appointed through the Public Service Act, and applicable labour laws would be used in cases of discipline and removal.

The Western Cape Province proposed expanding section 16 to allow the Tribunal to request the Director-General to designate officials in the Department to perform any investigations required by the Tribunal to take decisions on appeal. The Department agreed to the proposal for the new provision in section 16.

Ms Phumela Ngema, Senior Parliamentary Legal Advisor, stated that she was on vacation leave but was present to assist the Committee. She would be responding to four matters that she had identified from the deliberations on the negotiating mandates and the responses from the Department. She would be reviewing the expansion of the definition of permits in section 1(c) but was of the view that the provincial and national legislation were inclusive of municipal bylaws. The current phrase referring to ‘relevant transport legislation’ sufficiently covers all persons. In terms of sections 13 and 16, she requested to be allowed time to consult with the state law advisor. During the clause-by-clause deliberations, the legal team might have some suggestions in line with the recommendations of the Department.

Discussion
The Chairperson called on Members to share their reflections on the Department's and the Legal Advisor's responses. He felt it was critical to allow them the opportunity to apply their minds to sections 13 and 16.

Mr Rayi said it was difficult to engage at this time given that the Legal Advisor still needed to study the responses from the Department and advise the Committee accordingly. He suggested that the Committee wait for the legal advice before proceeding with the next step.

The Chairperson said the proposal made sense. He sought guidance from the Committee Secretary on an appropriate time for the next meeting. He appreciated Ms Ngema’s commitment and asked if a response could be expected by Friday, 3 May 2024.

The Committee Secretary replied that there was an opening on Friday, but it would depend on the readiness of the legal team. Alternatively, the meeting could be scheduled for Tuesday, 7 May 2024.

Ms Ngema said she would do her best to get the work done so that the meeting could go ahead on Friday.

Mr Dangor said he was scheduled to speak at a mosque on Friday but would be available until 12:00.

Ms Boshoff said she would be unavailable on Friday.

Mr Rayi suggested that the meeting be scheduled for next week Tuesday or Wednesday.

The Chairperson sought agreement from Members to allow the deliberations to be dealt with once the responses from the Parliamentary Legal Services are received and to meet next Wednesday, 8 May 2024.

Mr Rayi said the deliberations should focus on the proposed amendments from the provinces. He suggested that the clause-by-clause deliberations should be limited to those areas. The vote should afterwards be done on the entire Bill.

The Chairperson thanked Mr Rayi for his guidance and said the Committee would get guidance from the Committee Secretary and Ms Ngema on the date for the next meeting.

Negotiating Mandates: Marine Pollution (Prevention of Pollution from Ships) Amendment Bill [B5–2022]
The permanent delegates to the NCOP read the mandates of their provinces into the record. The Chairperson read the mandates of some provinces on behalf of absent delegates.

Eastern Cape (read by Mr M Rayi)
The Eastern Cape Legislature voted in favour of the Bill on 29 April 2024 and mandated the Eastern Cape permanent delegate to the NCOP to negotiate in favour of the Bill.

General Comment: The Portfolio Committee's public hearings report highlights other issues raised by stakeholders that the DOT ought to consider seriously.

Free State (read by Ms M Moshodi)
The Free State Legislature deliberated on the Bill on 12 March 2024 and voted in favour of the Bill.

Gauteng (ready by Mr M Dangor)
The Gauteng Legislature deliberated on the Bill on 11 March 2024 and voted in support of the principle and detail of the Bill and, therefore, voted in favour of the Bill.

KwaZulu-Natal (read by Mr T Brauteseth)
The KwaZulu-Natal (KZN) Legislature met on 22 March 2024 and agreed to mandate the provincial delegation to the NCOP to support the Bill.

Limpopo (read by the Chairperson)
The Limpopo Legislature deliberated on the Bill on 26 March 2024 and mandated the NCOP delegate to negotiate in favour of the Bill considering inputs and comments from the public in the attached report.

Mpumalanga (read by Ms S Boshoff)
Having considered the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill on 12 March 2024, the provincial legislature conferred on the permanent delegate representing the Mpumalanga Province in the NCOP the mandate to negotiate in favour of the Bill.

Northern Cape (read by the Chairperson)
The Northern Cape Legislature deliberated on the Bill on 7 March 2024 and voted in support of the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill.

North-West (read by the Chairperson)
The North-West Legislature deliberated on the Bill on 29 February 2024 and voted to support the Bill.

Western Cape (read by the Chairperson)
Having considered the subject of the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill on 23 February 2024, the provincial legislature conferred on the Western Cape delegation in the NCOP, the authority to support the Bill.

The Chairperson stated that the negotiating mandates of all nine provinces supported the Bill. He called on the Department to respond to the negotiating mandates, which were followed by the Parliamentary Legal Advisor.

Provincial Mandates: Proposed Amendments
Mr Dumisani Ntuli, Chief Director: Legislation and Policy Development, DOT, remarked that an additional comment was subsequently received from the Eastern Cape Legislature, and Members would not have seen the response thereto. He gave assurance that the response would address the concerns raised.

General comment
The Western Cape Province submitted that the numbering throughout the Bill needed to be checked and that some cross-references were incorrect. The Department stated that references had been checked and were found to be correct. The cross-referencing in the annexures to the convention was beyond the department's control.

Clause 1: Definitions
The Western Cape Province submitted that the words ‘party’ and ‘certificate’ should be defined to provide clarity. The Department argued that the word ‘party’ mirrors the usage in the Convention and did not consider it confusing. The global maritime practice has no binding general definition of the term ‘certificate’. It would, therefore, not be wise to introduce a regulated and binding definition.

Clause 2: Incorporation of Convention into Law
The Western Cape Province recommended that the time for the Minister to change the Schedule upon amendments should be specified. The Department argued that it would not be wise to legislate a timeframe for matters beyond the state’s control.

Clause 3: Discharge of Sewage  
The Western Cape Province recommended that consideration must be given to some of the chemicals used in the disinfection process. The Department stated that the IMO discharge guidelines regulate that only treated effluent should be released at sea.

Clause 5: Powers of the Minister   
The Western Cape Province submitted that the Bill should provide further details about the Advisory Committee that would be appointed by the Minister. The Department advised that the Advisory Committee is envisaged to be an ad hoc committee and that the proposed amendment is suitable for permanent committees.

Further amendments were proposed to the annexures of the Bill. Considering the response from the Chief Director that the Department does not have the authority to amend the text of the annexures, the detail is not provided in this report. (Refer to the discussion below.)

Mr Ntuli returned to the issue of uncertainty about the availability of port reception facilities that was raised by the Eastern Cape Legislature.

The Chairperson noted Mr Dangor and gave him the opportunity to comment.

Mr Dangor drew attention to the two ships that recently docked at the Cape Town Harbour. He enquired about the effluent being discharged because the regulation stipulated that the ship’s regulation on board would be observed. He asked if the provincial local authority should not have oversight over what is being discharged. He welcomed tourism but felt that its consequences should not be ignored.

Mr Ntuli, said he would respond to Mr Dangor’s question after dealing with the Eastern Cape issue about the adequacy of sewage port reception facilities. He explained that Regulation 11 provides guidelines for the handling of untreated sewage. This issue is linked to the question raised. All passenger ships must be fitted with sewage treatment plants which the administration of the ship would have approved. When ships dock in a South African port, the Environmental Affairs inspectors board the ship to examine the sewage treatment facility certificate. The Administration of the ship would be requested to provide the records of the oil and sewage discharge. Ships are allowed to discharge disinfected sewage using a system in accordance with regulation 9.1.2 of the Annexures and would have to give an account of the substances that had been discharged. He stated that the inspectors can examine the certificates but cannot enforce the guidelines unless these guidelines are regulated within domestic legislation. The inspectors did not have enforcement powers but these regulations were long overdue and would give the inspectors the authority to ensure that our waters are safe. Until then, the country is at risk.

Adv Andile Tetyana, Parliamentary Legal Advisor, said the legislation before the Committee is primary legislation. From time to time, lawmakers amend or appeal legislation. However, the Republic of South Africa is a party to international treaties and conventions which create international obligations for the country. South Africa is a signatory to the MARPOL Convention, which compels it to comply with the prescripts of marine pollution, including Annexures 4 and 6, which are under review. The Bill is aimed at amending the Act to give effect to Annexure 4 of the Convention for the prevention of pollution from ships and to incorporate the 1997 Protocol in order to give effect to Annexure 6 of the Convention. The primary focus of the Bill is to make provision for MARPOL Annexures and enact domestic legislation. This step by Parliament is to give formal consent to the Convention by making it officially valid. This had already been done in terms of Annexures 1, 2, 3 and 5 of the MARPOL Convention. The standards in this Bill mirror those in the MARPOL Convention. At the heart of the Bill is compliance with international conventions. The Principal Act of South Africa is the domestic MARPOL and reaffirms the sovereignty of the country in that it is able to regulate marine pollution in its domestic environment. The only issue not covered by MARPOL and the domestic Act is underwater noise pollution. This is a very technical area which would require ship owners to change the propellers and design of their ships which would be burdensome for the shipping industry, particularly in the absence of an international standard. The international maritime organisation does not have guidelines for underwater noise. It would be damaging for South Africa if ships could not come here because of underwater noise. This would negatively impact the ocean economy. In conclusion, he stated that the legal team was in agreement with the Department on the Bill.

Discussion
The Chairperson invited Members to comment on the information presented. The Committee will have an opportunity next week to finalise the Transport Bill after considering the feedback from the legal team. In view of the technical nature of this Bill, it would help to agree on the advice from Parliamentary Legal Services.

Mr Dangor wanted to know if there was an international convention regulating noise from bombardment in the case where a warship is docked but no war is declared. From his personal experience in Tripoli, no war was declared, but for months, the warships incessantly bombed the area, and citizens had to deal with the noise.

Mr Rayi sought clarity from both the Department and the Legal Advisor on the procedures being followed. The Bill has seven clauses that Parliament and the provinces need to consider. In his understanding, any proposed amendments would be considered at IMO level and not in this Bill. The schedules were meant as information on the implementation of the provisions of the conventions. He did not view this as an opportunity to amend the conventions because South Africa did not have the jurisdiction to do so unless it was invited as a party to the Convention to propose amendments to the regulations. The Bill will empower the Minister to amend the IMO regulations in the gazette instead of bringing another Bill. He questioned whether it was worth undergoing this process, considering that the Committee did not have jurisdiction but could only deal with regulations that the Department would be tabling.

Mr Ntuli replied that the text in Annexures 4 and 6 is given and the Department does not have the authority to amend it. The reason for giving attention to the questions raised and recommendations made from the Western Cape and the Eastern Cape Provinces was to explain why the proposed amendments were not accepted. The convention had been negotiated and South Africa was part of the negotiations and agreed with the text. The annexures that were being incorporated were part of the MARPOL Convention, which had gone through the acceptance process, and South Africa conceded to the Convention. The Constitution prescribes that before a convention becomes law, it must be domesticated. The Committee is restricted in what it can do and is only required to domesticate the conventions. In response to Mr Dangor, he said the international agreements on warships do not strictly apply but ships who dock in South Africa are required to comply with marine pollution prevention regulations. The enforcement on warships would be through diplomatic channels, which allow for a degree of flexibility for visiting warships. In terms of diplomatic agreements, there would be warnings about the ships arriving in order to invoke precautionary measures.

Adv Tetyana agreed with Mr Rayi and Mr Ntuli that the process was merely to domesticate the conventions.

The Chairperson sought agreement from Members to defer the deliberations to the following week after having received the responses from the Legal Advisor. He obtained consensus from Members to finalise the two Bills the following week. The Committee would be guided by the Legal Advisor and the Committee Secretary on the date of the meeting. The input from the legal perspective would put Members in a better position to deliberate on the Bill after which a report would be sent to the provinces for a final mandate before it is taken to the plenary.

Minutes
The Committee adopted the minutes of 24 April 2024 without amendments.

The Chairperson said a meeting might take place on Tuesday, 7 May 2024, mindful of the fact that half of the job had been done on the deliberations of the two bills. The process would be easier after Members had the opportunity to consider the advice from the legal team. He expressed his gratitude to Members for their contributions despite their tight schedules. The Bills are very technical and are of critical importance and worthy of processing. He thanked the Departmental staff and Parliamentary support staff for their support.

The meeting was adjourned.