Transport Appeal Tribunal A/B & Railway Safety Bill: Department response to public submissions

Meeting report

Transport Appeal Tribunal A/Bill [B8-2020]

Dr Anneke Clark, Committee Content Advisor, said the Transport Appeal Tribunal A/Bill had been passed by the National Assembly (NA) and transmitted to the National Council of Provinces (NCOP) on 7 March 2023 for concurrence.

The Department of Transport (DoT) briefed the Committee on 18 October 2023.

On 24 March 2024, an advert had been placed in national media that called for written submissions on the Bill, with the deadline set for 12 April 2024.

No written submissions or requests for oral submissions to the Committee had been received.

The Transport Appeal Tribunal A/Bill sought to amend the Transport Appeal Tribunal Act of 1998 so as to insert, delete and amend certain definitions, to bring the Act in line with developments since the enactment of the Act, and to provide for certain powers of the Transport Appeal Tribunal.

The Bill also allowed for the Minister to extend the term of office of members of the Tribunal, empowered the Tribunal to take appropriate steps in cases where its rulings were not implemented or effected timeously, and empowered it to investigate delays in the completion of its proceedings and to provide for matters connected therewith.

See attached

Discussion

The Chairperson asked the procedural staff to explain the next step in the legislative process.

Mr Hlupheka Mtileni, the Committee Secretary, replied that the NCOP was waiting on the respective provincial negotiating mandates. Once these were received, the Committee would process them and then determine the NCOP's final mandate.

The Chairperson wanted to know whether more provinces, other than the Eastern Cape, had indicated challenges with the timeframes.

Mr Mtileni replied that the provinces had indicated that they would be able to manage.

The Chairperson said that everything was thus in order, and that the Committee would get a sense from the legal advisers on the mandates from provinces, before sitting down for the final mandate.

Railway Safety Bill [B7-2021]

Dr Clark said that the Railway Safety Bill sought to provide for:

• the regulation of railway safety in the Republic;
• the continued existence of the Railway Safety Regulator;
• the board and governance structures of the Railway Safety Regulator;
• railway safety permits; and
• railway safety critical grades and safety management systems.

The Bill provided for a national railway safety information and monitoring system, a legal framework to enforce compliance with the Act, and dealt with railway occurrences.

It also provided for an appeal mechanism, for transitional arrangements. and the repeal of the National Railway Safety Regulator Act of 2002, and provided for matters connected therewith.

The Bill had been passed by the NA and transmitted to the NCOP for concurrence.

On 24 October 2023, the Bill was referred to the Committee for deliberations and processing.

The Department briefed the Committee on 15 November 2023 and on 18 February 2024, and an advert was placed in the national media, which called for written submissions on the Bill, with the deadline set for 25 March 2024.

Submissions were received from the Concerned Engineers Group, the Congress of South African Trade Unions (COSATU), the Gautrain Management Agency, the Bombela Concession Company, the Western Cape Department of Mobility, Mr Von Gericke and Mr Kolberg.

Dr Clark said that she would only deal with the constitutional parameters of the Bill, as well as the concurrent and constitutional duties of various spheres, whereas the Department would provide updates on their responses to these submissions.

She also summarised the submissions by the Western Cape Department of Mobility, Mr Von Gericke and Mr Kolberg.

Western Cape Department of Mobility

The Western Cape Department of Mobility (WCDoM) supported the Bill in principle, subject to the comments and recommendations submitted. It said the Bill lacked proposals to combat rail infrastructure, vandalism, and acts of criminality. It also noted that the primary and secondary roles and responsibilities of key stakeholders should be clearly differentiated. This was necessary to deal with all safety and security arrangements in the rail environment.

The WCDoM recommended that a formal agreement be reached between the relevant national heads of Transnet, the Passenger Rail Authority of South Africa (PRASA), the South African Police Service (SAPS), and Metrorail.

About the arrangements for persons with special needs, the WCDoM stated that the redevelopment of station infrastructure and rolling stock should be user friendly for persons with disabilities. The property owner should bear the associated costs, and not the operator of rolling stock. An appropriate cost benefit formula should determine these costs.

On security and safety risk assessments, the WCDoM advanced that the Bill created the impression that the rail operator should primarily be held responsible for the safety of rail commuters.

The WCDoM was of the view that both SAPS and PRASA/Transnet played a primary role in the development of risk assessments that were aligned with their primary and secondary mandates.

(Please see the presentation for further details)

Mr Von Gericke

Mr Martin von Gericke,  a former Transnet employee with experience in research, design and development in the railway sector, submitted that when the third party access was being implemented, private companies that would need wagons could possibly acquire wagons from manufacturers which were not able to manufacture to Transnet's requirements, and this would then threaten safety to the public.

He recommended that the definition of “technologies" should be amended to state that the Transnet specification standards and requirements should be adhered to.

(Please see the presentation for further details)

Mr Kolberg

Mr B Kolberg, a community member, submitted that the Bill must instruct or direct Transnet that wherever their trains operated, the railways should be fenced so that the safety of passengers as well as roaming animals, could be secured.

(Please see the presentation for further details)

Further submissions on Railway Safety Bill

Gautrain Management Agency

Mr Ntheri Magoai, Senior Executive Manager: Compliance and Legal Services, Gautrain Management Agency (GMA), said that the GMA had been invited by the Department in 2018 to comment on the initial draft Railway Safety Bill.

It had submitted substantial comments on the Bill, the majority of which were considered and subsequently incorporated therein by the Department.

In October 2021, the GMA reviewed the revised Bill and submitted further comments to the Portfolio Committee on Transport.

The GMA noted their comfort that their previous concern, which was related to the definitions of “network operator,” “operator,” “train operator” and “station operator,” had now been adequately addressed in the revised Bill through an all-encompassing new definition of “operator.”

In the main, the GMA was comfortable with the revised Bill.

See attached

Concerned Engineers Group

Mr Frances Cullard (sp), representing the Concerned Engineers Group (CEG), said the group was a loose association of concerned engineers -- primarily ex-railway-- who were concerned with railway safety, life cycle asset management, the role of professionals in railway management, railway accident (occurrence) investigations, passenger safety, as well as the ruination of public infrastructure.

In their view, the Bill approached safety as a bolt-on, rather than an embedded state. They called for an addition to the preamble, that safety was a desired state embodied in all processes and interfaces and that the Bill should also be applied to rolling stock leasing companies.

The objectives should include educating the public in railway safety.

The Regulator should keep abreast of international trends in rail safety and investigations, and this should be included in the powers and functions.

To achieve the objectives of the Bill, the CEG submitted that persons appointed should have the necessary qualifications and proficiency. Professionally qualified persons should be appointed to manage the life cycle of the assets in terms of the International Organisation for Standardisation / South African National Standards (ISO/SAN) 55000.

The Regulator should also verify and report on the functional condition of the assets and their deterioration/improvement rate.

See attached

Congress of South African Trade Unions

Mr Matthew Parks, Parliamentary Coordinator, Congress of South African Trade Unions (COSATU), welcomed the Bill, but expressed concerns over factors such as labour issues, the safety of commuters and pedestrians at rail crossings, and the Bill's complete silence on debilitating levels of copper theft, arson, vandalism and general criminality. It said if these were not addressed, the very survival of Transnet and Metro Rail would be threatened.

Bombela Concession Company

Mr Hubert Luvalo, Safety, Health, Environment and Quality (SHEQ) and 3rd Party Manager: Bombela Concession Company (BCC), said that his organisation had commented on various sections of the draft Bill, and that the presentation would cover only those sections which Bombela would like the NCOP to reconsider.

Bombela had proposed a new definition for “concession network operator” to mean the entity within a public private partnership (PPP) arrangement that, although not the owner of the network, was contractually, practically and physically responsible for the operation of a railway, including:

 (a) the safety of a network or part thereof; and

 (b) authorising and directing the safe and secure movement of rolling stock on a network.

Subsequently, Bombela considered the wording under paragraph (e) for the definition of the "operator" and therefore withdrew this proposal.

See attached

Discussion

Mr M Rayi (ANC, Eastern Cape) asked whether the Concerned Engineers Group (CEG) had ever shared the findings of their investigations with the Railway Safety Regulator.

He also touched on the fine line between security and safety, as one could not be safe if one was not secured. He wanted to establish who was therefore responsible for safety and security respectively within the ambit of accountability.

He asked COSATU to elaborate further on their recommendations about representation on the Board, as detailed in Section 15, as well as the issue of disqualification from the Board.

Regarding the appeal mechanism, he asked whether employees were not already covered by the Health and Safety Act.

He also recalled that the Department had only noted COSATU’s inputs on the meaning of reasonability, and he was unsure whether this meant that the Department had agreed with COSATU’s submission, as peoples' understanding of reasonability differed.

The Chairperson said that it was clear that the CEG presentation focused on railway safety and rail safety through the railway asset life cycle management, through its reference to "the appointment of competent people throughout the life cycle."

He also wanted to know whether the CEG supported the Bill, adding that the GMA was clear where it stood on the Bill.

The GMA had submitted reflections on Section 21 of the Bill which dealt with the delegation powers of the Board. He wanted to ascertain what the GMA’s take was on those powers and functions that needed not to be delegated. He further asked if the powers and functions that could be delegated were limited through the Bill, and what powers and functions, in their view, the Bill should be allowed to delegate.

The Chairperson stated that the BCC had expressed their support of the Bill. He recalled that there was an issue with Section 31 (2) (3), which dealt with the justifiable circumstances that imposed special conditions on the issuance of special permits. He said that justifiable circumstances could possibly relate to what was lawful, what was substantively and procedurally fair, and what was reasonable. He added that these were the requirements that would always attract any decision, whether it was administrative or not. Did the BCC not think that the requirements for just administrative action by its nature were lawful, was procedurally and substantively fair and reasonable, and that there would be a rational connection between the decision taken and the facts at hand?

Responses

Concerned Engineers Group

Mr Cullard (sp) said that the CEG supported the Bill, and that the aspects that the fellow presenters had brought up about the safety of assets and infrastructure were also close to their hearts, whether it formed part of this Bill or any other Bill.

He said the CEG had not yet engaged with the Regulator. It had, however, led some accident investigations for Transnet as well as PRASA, and to date, it had analysed 20 major accidents and assessed damages to the tune of R50 million. The investigations determined the pattern of root causes that led to accidents, and recommended measures that addressed these root causes. The CEG had also prepared many safety guidelines for the organisation.

On the certification of systems, he said that it was important for rolling stock and infrastructure to be declared safe. The safety aspect came in when a newly built and delivered locomotive was assessed by competent officials, who would then issue a certificate on whether it was safe or not.

On railway signalling, he said that if new signalling needed to be installed, the signalling engineer signed the train register and certified that it was safe. That was not an operational matter, but a certification matter. The CEG felt that this critical aspect of certification needed to be regulated appropriately by qualified and experienced experts.

COSATU

Mr Parks spoke on the disqualification of the Board. He said that clause ten did provide for worker representation, as it was one of the discussion points that Cosatu had had with the Department around 2016 or 2018. The previous Minister of Transport had committed to this. It was not in the original Bill, but was subsequently included by the National Assembly. Cosatu was happy about this development. Clause 15 (d) (1) (2) placed significant limitations in this regard, as it stated that if one was an employee in the public service or any other organ of state, one could not be included. This could mean a lot of things, so Cosatu did not understand the rationale, as at the same time, the Bill did include those limitations for the Executive for obvious rational reasons.

He said that where the Department had a representative, they wanted that representative to be accountable to them and they also wanted that person to be suitably qualified. Cosatu had the same rationale too, in that ideally, Cosatu would not just want to “grab a retired worker from somewhere." One really wanted people with expertise, and they were all excluded by clause 15 (d) (1) (2), especially (15) (d) (2), which dealt with any organ of the state. This was very broad.

Mr Parks said that in the preamble, employees were excluded from any appeals to the Board's Appeals Committee, and Cosatu was unsure about what harm was being prevented.

He noted that the Occupational Health and Safety Act addressed one as an individual worker or employee, and that it was not as broad as the Railway Safety Bill, and that there could be a rational reason.

He said that the police's inputs on passenger safety had pointed towards contextual concerns and that Cosatu was being opportunistic, as there had not been too many opportunities to engage on rail safety. Cosatu’s concerns were tied in with their call for a railway police service to be established and for the South African National Defence Force (SANDF) to act as support.

On the critical issues important for the handover report to the Seventh Parliament, Cosatu felt that safety was an important issue to raise, as the broader issues of safety and security were not being addressed.

Rail safety required a whole of government approach. He said that in Langa, fencing was absent around the railway lines, which endangered people’s lives. He also recalled the tragic accident that had involved school children in Blackheath a couple of years ago. Cosatu was thus of the opinion that the "can of responsibility" was being kicked by this Bill. The Bill did not provide any clarity, and this should be addressed.

Gautrain Management Agency

Mr Magoai said that the reason why the Department had noted only the comment on “reasonable” was that no amendments were being proposed. The GMA welcomed only the introduction of fairness as well as reasonableness in the determination of whether a safety permit was being issued.

On the delegation of powers, he said that under normal circumstances and from a corporate governance perspective, the Board’s powers could not be delegated, including the tenure of that committee and the remuneration of the board committee members. It should certainly not be subject to anyone outside the Board itself having to exercise it.

Bombela Concession Company

Mr Luvalo spoke to their submission on the definition of a safety permit, and said the BCC had now accepted the response by the Department “without reservation,” and that they now considered the matter closed.

He also thanked the Chairperson for his analysis of what justifiable circumstances mean in law, and said that the BCC’s submission should be seen in the absence of general guidance on the application of these justifiable circumstances. He noted that it could invoke some discussions and disagreements as to how the Regulator would make use of that, and that the BCC was happy with the Chairperson’s analysis.

Department of Transport: Response to Submissions

Mr Ngwako Makaepea, Deputy Director-General: Rail Transport, Department of Transport (DoT), accompanied by other senior officials from the Department, briefed the Committee on its responses to the submissions.

He said that the regulations regarding infrastructure or activity affecting safe railway operations, released in 2020, provided for the management of railway reserves to ensure safe operations, safety, and security for people, property, and the environment. Under these regulations, the operator was required to provide fencing.

The Bill provided only for safety and not security, as the latter would be addressed in the forthcoming National Rail Bill.

The Department said that Mr Kolberg’s submission had not appreciated the difference between railway safety and railway security. Railway security dealt with the physical security of passengers, goods and infrastructure, which was regulated by other such legislation. The Railway Safety Bill dealt with safety as to how rail operated.

Regarding the CEG’s submission in relation to clauses 36 (3) and 51 (3), it said that standards applicable to all operations would be prescribed. It also commented that rolling stock safety verification would be prescribed by regulations.

The Department had also not agreed with the CEG’s recommendation that safety was a desired state embodied in all processes and interfaces of railway operations.

On the WCDoM submission, the Department informed that the Bill had been submitted to the Department of Planning, Monitoring and Evaluation (DPME) for assessment.

Further to this, the Bill had provided only for safety and not security, as this would be addressed in the forthcoming National Rail Bill. The Western Cape’s submission did not appreciate the difference between railway safety and railway security. Railway security dealt with the physical security of passengers, goods and infrastructure, which was regulated by other such legislation. The Railway Safety Bill dealt with safety as to how rail operated.

The Department had also noted the inputs on the identification of a Railway Regulator and then started to address the safety and security-related inputs by the WCDoM.

The WCDoM had also advanced that the Bill lacked proposals to combat rail infrastructure vandalism and acts of criminality. There were also comments on the need for synergy between the different role-players. In this regard, the Department noted that whereas the Bill was focused on safety issues, operators were required to submit a safety management system within which they were required to submit a security management plan, which outlined the plans for security issues that should be dealt with.

The White Paper on National Rail Policy that was passed by the Cabinet in 2022 stated that the DoT would engage the Minister of Police to strengthen the South African Police Service (Railway Police) as a dedicated, proactive law enforcement division within the rail setting, for both fixed facilities and trains, as well as rail infrastructure declared as national key points.

The Department once again reiterated that rail security and rail devolution would be addressed in the forthcoming National Rail Bill and that nothing in the Bill prevented institutions from entering into agreements to combat vandalism and crime. This matter should be taken up with these institutions directly.

On the provisions related to persons with disabilities, it responded that it was the operator’s responsibility to ensure the safety of disabled persons, and that Clause 31 (2) (I) addressed this concern. The Bill did not provide for risk assessments, nor was this impression created.

Safety and security matters such as theft, malicious damage to property and other criminal acts that impacted safe railway operations, fell outside the scope of the Bill. It did not provide for this, nor created the impression that it did. Rail security would be addressed in the forthcoming National Rail Bill.

On the Minister of Transport’s potential conflict of interest, Members were informed that the Bill conferred powers to the staff of the Regulator to act independently, despite it being under ministerial oversight. The arrangements of the government and its entities were the prerogative of the Executive. Members’ attention was then drawn to clause 7 (1)(a).

The Department disagreed with the WCDoM that the Bill’s discretionary powers were too broad, and contended that there was no need to go into further detail on this issue. The current provisions within the Bill were adequate and confirmed as such by the state law advisers (SLAs).

The DoT also disagreed on the need to reference the relevant parliamentary committees in the Bill, as Parliament had its own rules that determined these matters.

On the supposed language and drafting errors pointed out by the WCDoM, the Department responded that the SLAs had certified that the Bill met all the legal requirements, and this had also been supported by the parliamentary legal adviser who had attended to the Bill when it was served before the National Assembly. The technical aspects alluded to in the comments had therefore been approved as having met legal standards.

Members were also informed that the SLA's legislative drafting guide had been used, and not a foreign system, and the state law adviser had certified that the Bill’s text had met all requirements. Commonwealth drafting practices were also not applicable in South Africa.

Regarding the prime responsibility of railway operators, and the SAPS’s role, in securing safety, the Department said that there was nothing wrong with the preamble referring to the prime responsibility and accountability of railway operators in ensuring the safety of railway operations. The Department noted the recommendation, but it fell outside the Bill’s scope.

Responding to Mr Von Gericke’s fear that inferior rolling stock might enter the sector, the Department said that all rolling stock would have to meet prescribed requirements, irrespective of whether they were sourced from traditional or other operators.

On COSATU’s concerns, the Department said that this was not a representative board, as it was a board that reflected competency in specific areas. It also determined its own programme and provisions for a consultative forum, as specified in clause 38 (4), which would also include trade unions. Enforcement inspections per Constitutional Court guidelines, as well as employees’ appeals, were already provided for.

It noted that the Regulator was responsible for safety and security oversight, not for providing safety and security operations. This remained in the operator’s purview. The Regulator’s role was to issue safety permits to operators whose safety management systems had indicated adequate controls for the safety of commuters and the security of assets.

The Bill also made no provision for the security of pedestrians and commuters at rail crossings and along rail lines in the Bill. The regulations regarding infrastructure activity that affected safe railway operations, and the SANS 0000-2-2-1 standard on level crossings, dealt with the matters raised.

On the recommendation to deploy the SANDF and the creation of a railway police unit, the Department stated that security was not provided for in this Bill, as the Regulator had responsibility only for safety and security oversight, whereas operators remained responsible for managing safety and security. The Regulator would issue a safety permit only to operators whose safety management system included a security plan.

Various proposals on the definitions in the Bill have also been made. These were not accepted.

On the objects of the Bill insofar as it pertained to commuter safety and security in clause 3, the Department said that clause 3 (a) already included it. The deployment of security was not a Regulator's function, and was already contained within the standard management system.

Regarding clause 4 (1) (a), if criteria could be defined, they would have been, and that reasons for exemption requests could not be limited -- the clause needed to be flexible to cater for unknown future developments.

On clause 4 (4) and clause 4 (6) (a), the Dot responded that flexibility was required, as circumstances differed from one case to another and that regulations, determinations and guidelines provided further details for governing related activities.

Flexibility was also required, as frivolous requests for exemptions did not require comments, and any outcome could be published online. The Minister eventually decided on this. The cost could be exorbitant, especially in cases for minor exemptions.

The Department also said that if factors could be predicted, they would have been, and that the reasons for exemption requests could not be limited, so clause 4 (9) (a) had to be flexible to cater for unknown future developments. “Good grounds” had been interpreted judicially and was not vague, and was a generally used phrase in statutes and had often been interpreted by courts.

On clause 7 (a), it was noted that a Bill should not prescribe operational requirements, and that the Regulator had no responsibility over necessary interventions that combated issues of vandalism and the destruction of property. The Regulator’s mandate was to regulate safety, not security.

The Department added that reporting was provided for in clauses 6 (a), 7 (1) (a), 6 (3), 13 (3) (b), 23 (2) (b) and (c), 23 (3), 29, 38 (8), 51 (4), (5) and (7).

Additional reporting should be required only by entities or persons who had a function, duty or power in respect of the subject matter. The information alluded to was not necessarily held by the Regulator but by operators, as a national public entity that was represented at the provincial level only if its operations required this. The operational capacity of freight and commuter trains was monitored as indicated by clause 7 (1) (d) (a).

On clause 7 (1) (a) (a), and the BCC’s request to include the word “reasonable,” the Department said that the comment would not be accepted as state organs should, in terms of the Constitution in any case, act reasonably. “Reasonable” was implied in the words used and was a duty as prescribed by section 195 of the Constitution.

On clause 9 ( 2) (a), the Department said that should the words “as far as possible” be removed from the Bill, it would expose the Regulator and its Board if the objectives were not fully met, which would be detrimental to its operations. The Department also felt that a general clause was sufficient since standards changed over time.

The DoT was also of the view that the words “railway sector” had excluded commuters and other users of railways, therefore the phrase “railway environment” was much broader and all-encompassing.

Members were informed that the Regulator’s Board was never meant to be a representative body. Board members did not represent constituencies, as the Regulator should not be beholden to particular interests. The Board’s focus was on competency, knowledge and experience. The aim was to have experts on the Board, and not industry representatives.

On clause 10 (1) (a), the Department reiterated that security was not the mandate of the Regulator, and that clause 10 (2) (e) provided for the Board to include a person designated by the Minister of Police. It also advanced that the Board consisted of members who collectively had extensive experience, and demonstrated the necessary knowledge and acumen, in railway safety.

The Department had also not considered the inclusion of the Department of Public Enterprises on the Board, as it controlled one of the operators.

The Dot asserted that clause 10 (4) (a) was not redundant, especially if there were only seven board members, as it could also have other executive members, in addition to the chief executive officer (CEO). Some civil society members could be appointed to executive positions, so this sub-clause had no negative impacts.

On clause 12 (1) (a), the Department said that the intention with the appointment of the chairperson and deputy chairperson was clear. Similarly, the Department felt it unnecessary to reconsider the inclusion of the word “vacant” in the Bill, as it meant the absence of the incumbent, and the reason for the absence was irrelevant. The reference was to positions being vacant, not to a person, as commented by the WCDoM. It simply meant that no person had been appointed to the listed position.

On clause 12 (5) (a), the Department said that it was impractical to attach a specific notice period for the chairperson or deputy chairperson wishing to vacate his or her office.

On the inputs by the GMA on clause 13 (1)(c)(a), the Department said that the word “must” prevented an impression of a voluntary process, and the phrase “at least” indicated that a greater number could be involved. This depended on what the Board evaluation indicated was to prevent the appointment of the whole Board at one point in time, so that continuity was ensured. The annual appointment process would be designed to accommodate this turnover.

On the inputs related to the disqualification from appointment as a board member in clause 15 (d) (i) and (i) (a), the DoT said that government officials did not form part of the Board, other than those contemplated in clause 10 (2) (c), (d) and (e). Members of the Board did not represent constituencies, as they had to be impartial and free from conflicts of interest.

On clause 17 (a), flexibility was required, as the Board determined its own operations. Board members also had fiduciary duties which made them accountable to the Public Finance Management Act (PFMA). Meetings were also covered in the board charter.

On the interpretation of "appropriate persons," as referenced in clause 18 (1) (b), the Department referred the WCDoM to sub-clause 1 to interpret “appropriate persons,” as it meant relevant people.

Responding to comments by the GMA related to clause 20, the Department stated that the Board would decide on the parameters, as well as on the delegation, as the latter did not prevent the Board from exercising a power itself. A delegation also did not absolve it from its accountability for anything done in its name under such a delegation. The Board was to be entrusted with decision-making as it saw fit, since this had been a provision in many statutes enacted by Parliament.

Limitations on the functions or powers which could be delegated were a policy decision which only Parliament could consider and formulate.

On submissions by the WCDoM and the CEG on clause 21, the DoT said that Parliament was not always in session, and that ministerial discretion should be flexible. The condition of assets and the safety record of railways were monitored only by the Regulator, and not by the Board.

The Department also did not agree with the WCDoM on clause 22 (2) (a), as the Board could at any time offer advice to the Minister, as outlined in clause 7 (1) (e). Clause 22 (4) was also not vague, as legislation and court rules were in place.

In response to the recommendation of the WCDoM and Cosatu on clauses 23 (5) (a) and 24 (2) (a),(3) and (4), the Department said that it was impractical and without merit. The position in question required immediate action and intimate knowledge of the Regulator, and was an interim measure. Collective bargaining was also already regulated in labour law.

On clause 23 (8), the Department stated that procurement was included in “strategic” documents, and that it would be impractical to stipulate to the Board, as the process required flexibility.

On clause 25, the Department said that "good faith" was the standard terminology, and excluded gross negligence.

The WCDoM had said that it was of great concern to them that in terms of clause 25 of the Bill, the state and other associated entities were not liable for any loss, damage, or failure to exercise any power or perform any function in terms of the Bill. In response, the Department said the provision, which could be found in many Acts of Parliament, was also a principle fully embedded in the State Liability Act, 1957. All provisions in law that provided for accountability applied to the Regulator. The Department added that the comments did not take into account the many court judgments on that matter.

Responding to the recommendations by the BCC on clause 27 (b), clause 30 (2) as well as clause 66, the Department disagreed with the proposal that the NCOP should consider the inclusion of guidelines on how the annual safety permit fees would be determined, including annual increases to be imposed on operations. It said that the permit fees were dealt with in a safety permit fee determination/regulation in sufficient detail.

On clause 30, the Department said that it was not necessary for safety permit applications to be published in the Government Gazette and two local newspapers, as it involved time delays and additional costs, and did not affect the general public directly. It added that if an applicant supplied insufficient or unverified data, it should pay for the additional information and that any person could take the Regulator’s decision on review. The review might be a result of insufficient/inadequate submissions by the operator.

State Law Advisor

Ms Veounia Grootboom, Senior State Law Adviser, briefed the Committee on the legal parameters.

She said that some legality issues on clauses 54 and 55 had been touched on, as some of the stakeholders had raised the issue of appeals and the rationale behind the exclusion of employees and suppliers from the appeals process.

She said employers, employees, and contractual suppliers had particular internal relations that made it inappropriate to include them in the appeals process. They still retained their rights to approach a court directly through the Promotion of Administrative Justice Act (PAJA) if there were any grounds for review on a decision that the Regulator had taken.

There was a legal relationship with employers, employees and suppliers that would be contractual, so those issues would be resolved in connection with that relationship between the Regulator and those persons or entities. The Office of the Chief State Law Advisor (OCSLA) was thus of the view that the clause was above Board and consistent with the Constitution.

On clause 15’s rationale, Ms Grootboom said there had already been representation from the state. The provisions in clause 15 avoided overrepresentation and allowed for impartiality. The rationale was thus to ensure that the Board was objective, and to avoid over-representation by the state. The Department in their submission had mentioned qualifications, experience, and other excluding factors.

On fencing, she said that when the Bill was submitted, fencing was included in the Bill. However, after consultations with the Department, it was determined that the Bill was a pre-constitutional Bill. Schedule 5 in the Constitution included fencing as an exclusive provincial competence to legislate, particularly with respect to local government matters.

This Bill was not interventionary legislation, but regulatory in nature. The Regulator had the power to implement measures so that operators complied with the regulatory frameworks of provincial and local governments. The only way that Parliament could legislate on the matter was if municipalities were unable to regulate fencing or provide for those matters. Since the stakeholders had brought up the matter of fencing, it was now up to the Department to decide whether this was actually the case.

On drafting practices, Ms Grootboom said that she did not want to sound defensive, as the OCSLA always ensured that legislation complied with South African drafting guidelines. Various steps were taken to ensure compliance, and it also looked at diverse sources from academics. She commented that legislation was developmental, and not stagnant.

Closure

The Chairperson thanked Members, stakeholders and the governmental entities for their attendance.

The meeting was adjopurned.