CHAPTER 3

MATTERS OF PROVINCIAL CONCERN

PART 13

Functions of MEC

Functions of the MEC

62. (1) The MEC must, in addition to the functions imposed by section 9—

(2) Where at the commencement of this Act, the province has been undertaking planning of public transport, other than of services contemplated in section 20(4), which in terms of the Constitution should be undertaken by municipalities, the MEC and the planning authorities concerned must make arrangements for the transfer of the planning functions to the planning authorities concerned.

63. (1) The MEC may make regulations with regard to any matter which, in terms of this Act, may or must be prescribed by an MEC under this Act.

(2) The regulations may, in appropriate cases, provide that any person who contravenes a provision thereof or fails to comply therewith, is guilty of an offence and on conviction is liable to imprisonment not exceeding three months or a fine not exceeding R10000.

(3) Any regulation made in terms of any previous law and in force immediately before the commencement of this Act with regard to matters in relation to which the MEC, in terms of subsection (1), is competent to make regulations, is regarded and treated for the purposes of this Act, as regulations made in terms of that subsection until such time as the MEC makes a superseding regulation under this section.

(4) The MEC may—

64. (1) Transport authorities may be established for transport areas, only as provided for in this Part and Part 5 and only if the functions of such authority in relation to the functions of the municipalities involved complies with the Constitution and with sections 84 and 85 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998).

(2) Any single municipality or any two or more municipalities, may, subject to section 11, enter into an agreement with the MEC that complies with the provisions of section 66 (hereafter called a founding agreement), in terms of which—

(3) The parties to a founding agreement may agree to amend the boundaries of the transport area concerned, provided that should such amendment involve the area of an additional municipality, the transport authority, if already established, must be dissolved in terms of section 70 and reconstituted.

Declaration of transport areas, and concomitant establishment of transport authorities

65. (1) The MEC must, not later than 14 days after the conclusion of an agreement mentioned in section 64, by notice in the Provincial Gazette—

(2) A founding agreement, upon having been so published, has the force of law, and no amendment thereof has any legal force or effect until the amendment has been made known by the MEC by notice in the Provincial Gazette.

Requirements for founding agreements

66. The founding agreement must be in writing and provide at least for the following:

67. (1) Subject to legislation applicable to local government, a transport authority must perform the functions assigned to it by this Act and may, with the agreement of the MEC or, where applicable, MECs—

(2) The MEC and a transport authority may agree—

(3) With a view to ensuring co-ordinated transport law enforcement within its area, the transport authority must liaise on a continuous basis with the South African Police Service, the relevant provincial and municipal law enforcement authorities or agencies, and the inspectors appointed and serving under the Cross-Border Road Transport Act, 1998 (Act No. 4 of 1998).

(4) A transport authority may, with the agreement of a participating municipality, assume co-responsibility for or assist the participating municipality in the application of traffic management techniques aimed at improving road traffic movement in that part of the transport area that coincides with the jurisdictional area of that participating municipality.

(5) (a) Whenever a transport authority—

the MEC, by notice in writing addressed to the transport authority through the latter’s governing body or chief executive officer, may order that authority to remedy its default and perform the function concerned, or, to perform it properly and effectively as the case may be, not later than the date stated in the notice.

(b) Thereupon the governing body and the chief executive officer are responsible to ensure that authority’s speedy compliance with that direction.

(c) If the transport authority fails to remedy its default within the period allowed therefor in the notice, the MEC may—

Ancillary powers of transport authorities

68. (1) A transport authority may enter into an agreement with a municipality that is not a participating municipality in terms of which the transport authority is to exercise or perform on behalf of that municipality, any power or function entrusted to the municipality by or in terms of this Act or applicable provincial laws.

(2) The transport authority may only enter into such an agreement if it itself is competent in terms of this Act and applicable transport legislation, to exercise or perform the same or a similar power or function with regard to its transport area.

(3) An agreement in terms of subsection (1) may involve the utilisation of funds of a transport authority outside of its transport area, if the MEC and the member of the executive council responsible for finance both agree.

(4) In addition to the powers conferred on it by or in terms of this Act and by or in terms of any provincial laws, a transport authority may perform any legal act or do anything which a juristic person is competent in law to perform or do, except in so far as may be inconsistent with this Act.

Governance of transport authorities

69. (1) A transport authority is governed and controlled by the governing body established for it in accordance with the founding agreement in force in respect of that authority, which must consist of councillors of the constituent municipalities.

(2) The governing body represents the transport authority, and all acts performed by the governing body or anyone duly authorised by that body to act in its place, are the acts of that authority.

70. (1) (a) Subject to paragraph (b) of this subsection, a transport authority may be dissolved only as provided for in this section.

(b) The provisions of paragraph (a) do not affect the capacity of any MEC for local government, when acting in terms of section 14 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), to make any arrangements having the opposite effect, nor do those provisions detract from the legal force and effect of any arrangements so made.

(2) A transport authority must be dissolved in terms of subsection (1) if the following requirements have been met:

(a) If—

(3) If the MEC and the municipality or the municipalities, as the case may be, party to that authority fail to reach agreement on any of the matters mentioned in subsection (2)(c)—

(4) The MEC must, within 30 days of the date of an agreement contemplated in subsection (2) or (3), by notice in the Provincial Gazette and a newspaper generally read in the transport area concerned, make known the dissolution of the transport authority and publish the terms of that agreement but, the date of dissolution must be so determined as to allow opportunity for sufficient notice being given.

Finances of transport authorities

71. (1) (a) The chief executive officer of a transport authority must have proper accounting records kept in accordance with generally accepted accounting practice and procedures so as to fully reflect the income and expenditure of that authority and the state of its financial affairs.

(b) The accounting records must include a revenue account which must be credited with all moneys which accrue to and are received by the transport authority, and must be debited with the expenses incurred by that authority.

(2) (a) Each transport authority must, not later than three months before the end of each financial year prepare a statement of estimated income and expenditure for the next financial year, which must be submitted to the participating municipality or municipalities for approval not later than the date to be determined by the MEC but, that authority may at any time during the course of the current financial year submit a supplementary budget for that financial year to the municipality or municipalities for approval.

(b) The transport authority may not incur any expenditure in excess of the total amount, including a supplementary amount of the budget as approved by the municipality or municipalities in terms of paragraph (a).

(c) A transport authority may establish a reserve fund for any purpose connected with its functions in terms of this Act, which has been approved by the MEC, and allocate to the reserve fund the moneys made available for that purpose in the budget including any supplementary budget approved under paragraph (a).

Delegations by governing body

72. (1) The governing body of a transport authority may delegate any of its power or function in terms of this Act, except the power of governance contemplated in section 69, the power conferred by this subsection, and the power to make by-laws, to any member of that governing body.

(2) Any delegation of a power of function in terms of this section does not prevent the governing body from exercising that power or performing that function.

Provisions applicable to delegations

73. (1) A delegation by the governing body under section 72—

(2) The governing body may at any time—

(3) If the MEC, is satisfied that the interests of land transport in the province or the transport area so require, may by notice in the Provincial Gazette—

74. (1) The parties to a founding agreement may provide therein—

(2) Where the founding agreement provides for the establishment of a transport executive—

75. (1) The MEC and any two or more transport authorities authorised thereto by their respective participating municipalities, may enter into an agreement providing for the formation of a transport executive under the auspices of those transport authorities jointly, to perform, for each of them, the professional, technical, administrative, clerical and other work arising from, necessary for, associated with or incidental to its functioning as a transport authority in terms of this Act and exercising or carrying out its powers and functions thereunder (hereafter called a joint transport executive).

(2) In such an agreement provision must further be made for at least—

Appointment of members of permissions board

76. (1) The permissions board consists of the number of members determined by the MEC by notice in the Provincial Gazette.

(2) The provisions of section 5 of the Road Transportation Act, 1977 (Act No. 74 of 1977), or replacing provincial laws, shall apply to members of the board.

(3) (a) Any interested person may make a written request to the board that a board member recuse himself or herself where the person has reason to believe that the member has or could reasonably be expected to have such a financial or other conflict of interest and such a request must specify detailed reasons.

(b) The member concerned must give due regard to such a written request and decide whether or not to recuse himself or herself in the relevant circumstances.

Duties of permissions board

77. (1) The permissions board must exercise or perform its powers and functions independently, free from governmental, political or other outside influence, and impartially, without fear, favour or prejudice.

(2) The permissions board must meet as often as may be necessary to conduct its business expeditiously and efficiently.

(3) The permissions board must keep minutes of its proceedings and keep records of all applications that have been made to it.

(4) Every permissions board must—

Continuation and conversion of existing permits

78. (1) Subject to this Part, any permit issued for an indefinite period and any permit issued for a definite period which, on the commencement of this Act has not yet expired, remains in force temporarily as provided for in this section.

(2) The holder of such a permit may have it converted to a permission in accordance with this Part by applying for the conversion, in the manner prescribed by the MEC—

(3) A permit mentioned in subsection (1) lapses—

(4) The authority conferred by a permit may not be renewed, amended or transferred, unless the permit has first been converted to a permission in accordance with this Part.

79. (1) A permit may not be converted to a permission unless the transport service that it authorises has been provided on a regular basis for a period of at least 180 days before the date on which application is made for conversion, except where the permit was issued less than 180 days before the date of such application.

(2) The applicant must furnish proof to the satisfaction of the permissions board that the requirement set by subsection (1) has been met, by supplying written confirmation from the relevant planning authority, or by such other method as the board deems sufficient.

Manner of converting permits to permissions

80. (1) Subject to this section, a permission issued in place of a permit pursuant to the conversion contemplated in section 78, must confer the same authority as that which had been conferred by the permit, except that route descriptions that are considered by the permissions board to be vague or inadequate, may be improved.

(2) In the case of the conversion of a permit for a scheduled service—

(3) In the case of the conversion of a permit for an unscheduled service—

(4) In the case of the conversion of a permit for a metered taxi service, the permission to which that permit is converted must describe the particular area within which passengers may be picked up in the operation of that service.

(5) Except where the permit to be converted already authorises public transport services on a particular route or routes, the permissions board must request each planning authority in whose area the services are operated to make any representations and recommendations it considers fit with regard to the route or routes, or, where applicable, the area, to be specified in the permission to which that permit is to be converted.

(6) Permits issued in terms of the Venda Road Transportation Act, 1979 (Act No. 13 of 1979) and the Ciskei Road Transportation Control Act, 1982 (Act No. 4 of 1982) that are renewable annually, but are otherwise not limited to a period of validity, are regarded for the purposes of conversion to permissions, as permits issued for an indefinite period.

(7) A permit converted to a permission in terms of this section may not be issued to a person as the nominee of another person.

(8) No compensation is payable to the holder of a radius or area-based permit by virtue of its conversion to a route-based permission in terms of this section.

Conversion of permits to permissions for larger vehicles

81. Application for the conversion of a permit to a permission for a larger vehicle under section 32(5) or (6) must be made in the manner and form prescribed by the MEC.

Disposing of applications with regard to permissions for non-contracted services

82. (1) Where any application is made for the granting, renewal, amendment or transfer of a permission in respect of a non-contracted service, the permissions board may grant or refuse the application only after having considered, subject to subsection (2)—

(2) An application for a permission relating to the operation of a non-contracted service on any particular route or routes in the area of a planning authority, may not be granted if the public transport requirements for the particular route or routes are adequately served by a then existing public transport service of a similar nature, standard or quality provided in terms of a commercial service contract or subsidised service contract or in terms of permissions as shown by relevant transport plans.

(3) Such an application must be made in the manner prescribed by the MEC and be accompanied by the prescribed application fee.

(4) (a) The permissions board may grant an application for the granting, renewal, amendment or transfer of a permission subject to any conditions, determined by it, that are not inconsistent with this Act or with relevant provincial laws, but subject to section 40.

(b) A condition may be so imposed only after consideration of the matters which, in terms of subsection (1) and, where applicable, subsection (2) and relevant provincial laws, are to be taken into consideration for the purpose of deciding the application.

Cancellation of permissions not brought into use

83. (1) Where it comes to the notice of the permissions board that a permission converted from a permit has not been brought into use within 180 days, the permissions board must, by notice in writing, call on the holder to advance good reasons, to the satisfaction of that board and within the period stated in the notice, for not having commenced operating the public transport service to which that permission relates, and, accordingly, why that board should not cancel that permission.

(2) Where the permissions board is satisfied with the reasons advanced, the holder of that permission must be allowed a further period specified by that board, but not more than180 days, to commence the operation of that service, and the holder, must be informed in writing, accordingly.

(3) If not so satisfied, or where the holder has failed to advance reasons within the time allowed therefor in the notice, the permissions board must cancel the permission and in writing inform the holder accordingly and direct the holder to surrender that permission, together with the distinguishing marks with regard thereto, to the permissions board within seven days after the date of the notice.

Issue of permissions, and contents thereof

84. (1) A permission may not be issued unless—

(2) Any permission granted, renewed, amended or transferred in accordance with this Act or applicable provincial laws, will be issued, in the manner and form prescribed by the MEC, by an official of the permissions board designated by the latter for that purpose.

(3) A permission may not be issued in terms of this section unless the successful applicant for—

(4) A permission must state the following:

(5) Permissions for long distance services must specify the route or routes, the ranks or terminals for the picking up and setting down of passengers and any other points along the route or routes where passengers may be picked up or set down.

Authority conveyed by permission

85. A permission granted and issued under this Act—

Persons who may hold permissions

86. A permission may only be issued to and held by the person registered, in terms of the Road Traffic Act, 1989 (Act No. 29 of 1989), as the owner or operator of the vehicle, as defined in that Act, and specified in the permission, except where the permission relates to the operation of a public transport service in terms of a commercial service contract or a subsidised service contract, and the public transport operator party to the contract has sub-contracted another operator to operate part of that service on behalf of the first-mentioned operator and in such a case—

87. (1) In determining the period of permissions for non-contracted public transport services, due regard must be had to—

(2) In the case of permissions for long distance services, the permissions board—

(3) In the case of permissions for staff services to be provided on a regular basis, the permissions board must specify the route or routes authorised.

(4) Permissions for charter services, long distance services, staff and tourist services must be granted for a fixed period determined by the permissions board, subject to section 35.

(5) In the case of an application for the granting, renewal or amendment of a permission relating to a long distance service, due regard must be had to the provisions of any transport plans prepared by the relevant planning authority and of any applicable provincial laws and, subject to this paragraph—

88. (1) (a) A particular vehicle specified in a permission as being the vehicle by means of which a public transport service provided for in a public transport plan is to be operated, may not also be specified in the permission as being the vehicle by means of which any long distance service is to be operated, except if the planning authority agrees thereto.

(b) However, that planning authority may not so agree where the operation of the long distance service will or is likely to be detrimental to the operation, by means of that vehicle, of the public transport services provided for in that transport plan.

(2) A vehicle specified in a permission to provide a long distance service may not also be specified in the permission as being the vehicle by means of which a public transport service provided for in a transport plan is to be operated, except if the planning authority has agreed thereto.

89. (1) Where the holder of a permission for the operation of any public transport service wishes to replace the vehicle that is specified in that permission for the operation of that public transport service, by another vehicle with the same passenger capacity, the holder must apply for the replacement, in the manner prescribed by the MEC, to a member or official of the permissions board whom the board has authorised in writing to dispose of the matter, provided the nature of the replacing vehicle and the quality and standard of the service are not affected by the replacement.

(2) The authorised member or official of the permissions board must allow the replacement and issue to the holder an amended permission, if satisfied that—

(3) Where a sub-contractor operates any part of the public transport service to which a permission relates, on behalf of the holder of the permission, the sub-contractor may rely on the provisions of this section to replace any vehicle of which the latter is the registered owner and which is specified in that permission, in all respects as if the subcontractor were the holder of that permission.

Special conditions relating to metered taxi and staff services

90. (1) In the case of a metered taxi service, the vehicle specified in the permission authorising the operation of that service, may—

(2) The MEC may in addition to the provisions of this Act, prescribe the circumstances in which a permission may be granted for staff services.

Courtesy services

91. No permission is required for the operation of a courtesy service.

92. (1) The holder of a permission must—

(2) (a) The authority conferred by a permission may not—

(b) A transaction concluded in contravention of paragraph (a), has no legal force or effect whatsoever.

(3) From a date determined by the MEC by notice in the Provincial Gazette, the holder of a permission for the operation of any public transport service in the province, must—

(4) The information and particulars necessary for the purposes of subsection (3), must be recorded by the driver of the vehicle, or by the conductor if one is on duty, at the end of each forward and return journey.

(5) Where any sub-contractor operates any part of the public transport service to which a permission relates, on behalf of the holder of the permission, the provisions of this section except subsection (1)(i) and (k), applies to the sub-contractor, with the changes required by the context, in all respects as if the sub-contractor were the holder of that permission.

Temporary replacement of specified vehicle

93. (1) Where the vehicle specified in a permission or permit for the operation of a public transport service, has become defective temporarily, the permissions board or a member of that board duly authorised by it , may on application by the holder of the permission or permit, or, where that vehicle belongs to a sub-contractor mentioned in section 86, on application by that sub-contractor, in writing authorise the holder or the sub-contractor on behalf of the holder, to use temporarily, in the place of that vehicle, another vehicle for the purpose of operating that public transport service, subject to subsections (2) and (3).

(2) The written authorisation must be in the form as prescribed by the MEC, and must specify at least the following:

(3) (a) The passenger capacity of the replacing vehicle preferably must be equal to that of the vehicle specified in the relevant permission, but may—

(b) The replacing vehicle must be suitable for the operation of that public transport service and, except in so far as this section provides otherwise, must comply in all other respects with the requirements and conditions that apply and are in force in terms of this Act with regard to the vehicle so specified in the permission.

(4) The written authorisation must be kept in the replacing vehicle to which it relates, together with the permission applicable to the replaced vehicle for the duration of the period of replacement provided for in that authorisation.

(5) The replacing vehicle will, during the authorised period of replacement, be regarded and treated, in all respects as the vehicle operated under the permission specifying the replaced vehicle.

94. (1) Subject to section 52, the MEC must appoint a Transport Registrar for the province to exercise the powers and perform the functions and duties conferred and imposed on the holder of that office by this Part and Part 12.

(2) (a) The Registrar receives the salary and allowances and be entitled to the benefits determined by the MEC with the agreement of the member of the executive council responsible for finance in the province.

(b) The salary, allowances and benefits so determined must be specified in the Registrar’s letter of appointment.

(3) The head of the provincial department must, subject to the laws governing the public service, provide the staff necessary to assist the Registrar in the performance of the functions and duties of that office.

(4) When the office of Registrar is vacant or the Registrar is unable to act due to any temporary physical or mental disability, the MEC may appoint any fit and proper person who is not subject to any disqualification mentioned in section 95, to act as Registrar and exercise or perform the powers, functions and duties of that office until the vacancy is filled or, the incumbent of that office has resumed duty as the case may be.

95. (1) A person may not be appointed or remain in office as Registrar—

(2) When the appointment of any person as Registrar is considered, the person may be required to disclose to the MEC, in writing, any interests which the person may have in the minibus taxi industry or any other part of the public transport industry.

96. (1) The Registrar may resign by giving one month’s written notice to the MEC.

(2) The MEC may at any time remove the Registrar from office—

97. (1) The Registrar must vacate office—

(2) When the office of Registrar has become vacant, the MEC must take immediate steps to fill the vacancy by the appointment, in accordance with section 94, of a fit and proper person who is not subject to a disqualification mentioned in section 95, which applies, with the changes required in the context, to such an appointment.

Functions of Registrar

98. (1) The Registrar must—

(2) (a) The information and particulars recorded in the provincial register will be open to inspection by the public during the provincial department’s normal office hours.

(b) At the request of any interested person and on payment of the fee, if any that has been prescribed by the MEC, the Registrar must furnish the person with a certified copy of or extract from any record contained in the provincial transport register, subject to subsection (7) of section 6.

(3) In dealing with any matter contemplated in subsection (1)(a) or (f), the Registrar may—

(4) Any party affected by any decision made or given by the Registrar may require the Registrar to furnish reasons for that decision in writing, whereupon the Registrar must do so without delay.

(5) For the purposes of this section, any reference to "registration" and "registered" must be construed as including a reference to "provisional registration" and "provisionally registered", respectively.

Registrar required to disclose commercial and pecuniary interests

99. (1) The Registrar may not attend to and dispose of any matter in which the Registrar has a direct commercial or pecuniary interest which is greater than that which a member of the general public has in that matter.

(2) If at any stage it appears that the Registrar has or may have an interest which in terms of subsection (1) may preclude the Registrar from disposing of the matter, the Registrar must forthwith—

(3) (a) The MEC must without delay, in writing, notify the Registrar of the decision taken on the issue.

(b) Where the MEC finds—

(4) Any act performed by the Registrar in disposing of a matter contrary to subsection (1), is invalid and has no legal force or effect whatsoever.

100. (1) The Registrar must annually, as soon as possible after the end of the province's financial year, submit to the MEC a report on—

(2) The MEC must table the Registrar’s report in the provincial legislature within 21 days of receipt, if the legislature is then sitting, or if it is not then sitting, within 21 days of the beginning of its next session.

Establishment and functions of panel of assessors

101. (1) The MEC, after consultation with the Registrar, may by notice in the Provincial Gazette establish a panel of assessors consisting of the number of assessors specified in the notice, but not fewer than five and not more than seven, of whom—

(2) Before appointing persons as assessors, the MEC must—

(3) The functions of the panel of assessors are—

Appointment, remuneration and conditions of service of assessors

102. (1) Subject to subsection (2), the MEC must appoint the number of assessors specified in terms of section 101(1).

(2) Before appointing persons as assessors, the MEC must—

(3) In so doing, the MEC must appoint fit and proper persons who are characterised by their impartiality, but may not appoint any person as an assessor if the person is disqualified from being appointed Registrar.

(4) An assessor is appointed—

(5) Each of the assessors is entitled to—

Meetings of panel of assessors

103. (1) (a) The panel of assessors meets as often as may be necessary to conduct its business expeditiously and efficiently.

(b) For that purpose, any meeting of the panel of assessors is held at the place and time determined by its chairperson or as decided by that panel at a previous meeting but its first meeting will be held at the place and time determined by the Registrar and at that meeting, which must be attended by all the assessors, they must elect one of their number as the chairperson.

(c) All the assessors must be given notice in writing of any meeting of the panel.

(2) A majority of the total number of assessors forms a quorum at any meeting of that panel.

(3) (a) A decision of a majority of the assessors present at a meeting will constitute a decision of the panel of assessors, subject to subsection (2).

(b) In the event of an equality of votes on any matter, the chairperson, will have a casting vote in addition to a deliberative ordinary vote.

(4) No decision taken or given and no other act performed by the panel of assessors will be invalid merely by reason —

if that decision was taken or that act was authorised by the required majority of the assessors who were entitled to sit and participate as members of that panel.

(5) (a) The panel of assessors must keep minutes of the proceedings at its meetings.

(b) The minutes of any meeting of the panel of assessors, when confirmed at a next meeting and signed by the person who presidies the latter meeting, will, in the absence of proof of error, be regarded and treated as a true and correct record of the proceedings and matters at the meeting which they purport to minute, and will be sufficient evidence of those proceedings and matters at any proceedings before a court of law or any tribunal or commission of inquiry.

Panel of assessors may co-opt in certain circumstances

104. (1) The panel of assessors may, with the approval of the Registrar, co-opt to that panel one or two persons who are not disqualified in terms of section 102(2), for the purpose of assisting that panel with any matter before it which falls within such a person's particular field of expertise or specialisation.

(2) Such a co-opted person may address the panel of assessors and participate in the panel's discussion of the matter, but may not take part in any voting thereon.

(3) Section 103(4) will apply, with the changes required by the context, also where any person has been co-opted in terms of this section.

105. Sections 96 and 97 relating to the Registrar’s resignation and removal from and vacation of office and to the filling of a vacancy in that office, will apply, with the changes required by the context, to the resignation and removal from office and vacation of office of an assessor and the filling of a vacancy in the panel of assessors.

Disclosure of assessors’ commercial and pecuniary interests

106. (1) An assessor may not attend or participate in any meeting of the panel where the proceedings at the meeting entail the discussion of or voting on any matter in which the assessor has a direct commercial or pecuniary interest which is greater than that which a member of the general public has in that matter.

(2) If, at any stage during any proceedings of the panel of assessors it appears that an assessor has or may have an interest which in terms of subsection (1) may preclude the assessor from participating in the proceedings—

(3) If an assessor fails to disclose any interest in compliance with subsection (2) when that panel considers and deals with any matter to which the interest relates, or if such an assessor otherwise contravenes or fails to comply with subsections (1) or (2), the proceedings affected by the non-disclosure, contravention or non-compliance are invalid and without any legal force and effect whatsoever, and the assessor concerned will be guilty of misconduct.

107. (1) (a) For the purposes of section 55, the Registrar, if satisfied that an association or non-member qualifies for provisional registration in terms of that section , must register the association or non-member provisionally, subject to section 54((1)(a), by entering the latter's name and the required particulars as prescribed by the MEC in the provincial transport register.

(b) The onus rests on the association or non-member to ensure that provisional registration occurs in terms of paragraph (a).

(2) The provisional registration of an association or non-member in terms of subsection (1), will lapse on whichever one of the following events occurs first:

(3) The Registrar must register an association which, before the expiry of the period of its provisional registration, has applied to the Registrar to convert its provisional registration to full registration and has satisfied the Registrar—

(4) The Registrar must register any non-member who, before the expiry of the period of provisional registration, has applied to the Registrar to convert the non-member’s provisional registration to full registration and has satisfied the Registrar that the non-member complies with section 112.

(5) This section does not preclude an association whose provisional registration has lapsed in terms of subsection (2)(a), from applying for registration in terms of section 109.

108. (1) An association may be provisionally registered if—

(2) The Registrar, if satisfied that an applicant association meets the requirements for provisional registration imposed by subsection (1), must register it provisionally, by entering its name and the particulars prescribed by the MEC in the provincial transport register, subject to this section, and must issue to the association an appropriate registration certificate in the form so prescribed.

109. An association qualifies for registration and, upon having applied therefor, must be registered, if—

Application and registration procedure

110. (1) An association applies for registration or provisional registration or for conversion of provisional registration to full registration, by submitting to the Registrar—

(2) The Registrar, if satisfied that the applicant association meets those requirements, must register the association concerned or convert the association’s provisional registration to such a full registration, or provisionally register the association by entering its name and the required particulars as prescribed by the MEC, in the provincial taxi register.

(3) Upon having registered, converted the registration or provisionally registered any association in accordance with subsection (2), all persons found by the Registrar to be members of that association and to meet the requirements of this Act, must be registered or provisionally registered as members by entering in the provincial taxi register their names and the required particulars as prescribed by the MEC for the purposes of this subsection.

(4) A non-member applies for registration by submitting to the Registrar—

(5) The Registrar may require further information in support of any application made in accordance with this section.

111. (1) Where an association has been registered, every member of the association who has subscribed to its constitution and to the Code of Conduct applicable in the province where that association is registered, and who complies with the other requirements of this Act and provincial laws must be registered as a member

(2) (a) (i) Where any association has been provisionally registered, every person who is a member of the association and holds an appropriate permission or permit for each vehicle by means of which the member operates a public transport service or has applied for the appropriate permission or permit, must be registered as a member provisionally for a period ending when that association’s provisional registration lapses.

(ii) The onus rests on any member of an association which has been provisionally registered, who seeks provisional registration in terms of paragraph (a), to take the steps necessary, with a view to ensuring that the member’s provisional registration occurs in terms of subparagraph (i).

(b) Where the provisional registration of an association has been converted to full registration, every member of the association who has subscribed to the association’s constitution and to the Code of Conduct applicable in the province where that association is registered, must be registered as a member.

(3) (a) Within one month after the admission of a new member to any association mentioned in subsection (1) or (2)(b), its executive committee or body, or any member thereof or office-bearer of the association authorised thereto by that committee or body, must apply to the Registrar, in the manner prescribed by the MEC, for the new member’s registration as a member.

(b) A new member on behalf of whom such an application has been made, must be registered or provisionally registered as the case may be as a member if the Registrar is satisfied that—

112. (1) A non-member qualifies for registration and, upon having applied therefor, must be registered, where—

(2) A permission may not be granted to a non-member unless the non-member submits to the permissions board a certificate from the Registrar certifying that he or she complies with the requirements of subsection (1)(b), (c) and (e), and the Registrar must issue such a certificate to a non-member who qualifies on payment of the prescribed fee.

Certificates of registration and distinguishing marks

113. (1) The Registrar must upon having registered or provisionally registered any association, any member or any non-member, allocate a unique registration number to the association, member or non-member concerned and issue to the association, member or non-member a registration certificate or a certificate of provisional registration in the manner and form and containing the particulars as prescribed by the MEC, subject to section 58.

(2) Subject to section 58 where the member or non member is registered or provisionally registered, the Registrar, with effect from a date determined by the MEC must by notice in the Provincial Gazette, issue, in the manner and form prescribed by the MEC—

(3) Subject to section 58 the Registrar must also issue such a distinguishing mark for each vehicle used by any registered or provisionally registered member, and any registered or provisionally registered non-member, whose registration occurred before the date of that notice, upon mere submission to the Registrar of—

Duties of registered and provisionally registered associations and non-members

114. (1) A registered association must—

(2) Every registered or provisionally registered non-member must—

(3) The provisions of subsection (1) will apply, with the changes required by the context, to any provisionally registered association.

Standard Minimum Constitution and Code of Conduct

115. (1) The MEC must, as soon as possible after the commencement of this Act, by notice in the Provincial Gazette and after having followed the appropriate public consultation procedure, prescribe—

(2) The Standard Minimum Constitution sets a yardstick for the preparation of a constitution for an association with a view to enable the registration of associations in accordance with this Part and Part 12, provided the other requirements for registration are met.

(3) The Code of Conduct constitutes the set of ethical norms in accordance with which any minibus taxi-type service is to be operated.

116. (1) The constitution of an association must for the purposes of full registration, comply with the minimum requirements, if any, prescribed by the Minister in terms of section 59, and—

(2) The constitution also, in making provision in terms of subsection (1) for—

117. (1) (a) Where the Registrar on reasonable grounds suspects that a registered association has failed to comply with any provision of its registered constitution that is material for the application of Part 12 or this Part, or that a registered non-member has breached the Code of Conduct, the Registrar must conduct an investigation into the matter.

(b) In conducting such an investigation, the Registrar must give the association or non-member an opportunity to make representations or give evidence with regard to the alleged non-compliance or breach.

(c) In deciding the matter, the representations and evidence made, given or furnished by the association or non-member must be taken into consideration.

(2) Where in terms of this Act, the specific act of non-compliance or breach constitutes an offence and the association or non-member has been charged with such an offence, the Registrar may postpone the investigation until the criminal proceedings against the accused have been finalised or withdrawn.

(3) (a) If the Registrar finds such an association or non-member to be guilty of such a non-compliance or breach, the Registrar, by notice in writing, must direct the association or non-member to remedy the non-compliance or breach within the period stated in the notice, and set out the steps to be taken for that purpose.

(b) An association or non-member to whom such a notice has been given, may approach the Registrar’s office for assistance in taking the steps specified in the notice.

(4) Upon failure to comply with such a notice, the Registrar may impose a fine not exceeding an amount as prescribed by the MEC for the specific non-compliance or breach, or cancel the registration of the association or non-member or suspend the registration temporarily, as dictated by the gravity of the non-compliance or breach and the circumstances relevant thereto.

(5) (a) Where a registered association’s non-compliance with such a material provision of its registered constitution or the breach of the Code of Conduct by a registered non-member cannot be remedied, the Registrar must impose one of the penalties provided for in subsection (4), and may, in severe cases where the penalty so imposed involves the cancellation of the registration of the association or non-member, issue an order in terms of which the association or non-member is disqualified from being registered at any time during a specified period which may not be longer than one year.

(b) Where the registration of an association has been terminated or suspended temporarily in terms of paragraph (a), the registrations of all its members will be cancelled or suspended as the case may be for the same period.

(6) Upon being notified by a registered association that it has terminated or temporarily suspended the membership of a registered member for non-compliance with its registered constitution or breach of the Code of Conduct, the Registrar must cancel that member’s registration or suspend it for the same period, respectively.

(7) The Registrar must within one week after having acted in terms of subsection (4), (5) or (6) against any registered association, member or non-member, by written notice, notify the MEC, the Registrar of every other province and every planning authority in the province or under its jurisdiction, of the action so taken.

(8) (a) The Registrar by written notice must inform any association, member or non-member of cancellation or temporary suspension of registration, and direct the association, member or non-member as the case may be to return the latter’s registration certificate to the Registrar within seven days of the date of the notice.

(b) Where an association’s registration has been cancelled or suspended temporarily, the Registrar must further direct the association to ensure that all its members’ registration certificates are returned to the Registrar within the period specified in that notice.

(9) The preceding provisions of this section applies, with the changes required by the context, to any provisionally registered association or non-member, subject to the relevant provisions of this Act.

118. (1) The Registrar must cancel the registration or provisional registration of—

(2) An association, member or non-member whose registration or provisional registration has been cancelled or temporarily suspended as provided for in this section or a provincial law, must return the registration certificate or certificate of provisional registration and the distinguishing marks, if any, issued with regard to the registration or provisional registration so cancelled or suspended to the Registrar within the time specified in provincial laws.

(3) The Registrar may, where an association has terminated membership due to a member’s breach of the Code of Conduct, if justified in the circumstances, cancel that member’s registration or provisional registration in respect of any other association of which the former is a member, after having given the member sufficient opportunity to make representations and advance reasons why that should not be done.

(4) The Registrar may cancel, or suspend temporarily for a period not exceeding one year, the registration or provisional registration of—

119. (1) Where the full registration of an association lapses or is cancelled, all permits and permissions held by the members of that association which relate to the route or routes in question, shall lapse on a date calculated as 90 days after such lapsing or cancellation, unless—

(2) Where the registration of a non-member lapses or is cancelled, all permits and permissions held by the non-member which relate to the route or routes in question shall lapse on a date calculated as 180 days after such lapsing or cancellation, unless—

120. The registration or provisional registration of any member or any non-member, is no bar to the prosecution of such a member or non-member for an offence mentioned in section 126(1)(a).

121. (1) In addition to the measures provided for in this Act with regard to law enforcement, the MECs, transport authorities and municipalities, including municipalities in their capacity as core cities of their MTAs, must take active steps to develop systems to improve land transport law enforcement in their respective jurisdictions.

(2) Despite the provisions of any other law—

called in this section an enforcement authority, may enter into an agreement in terms of which—

on terms and conditions set out in the agreement, including conditions as to which authority shall bear the costs involved.

MEC may appoint inspectors

122. (1) (a) The MEC may designate employees in the provincial department, or of transport authorities, who are fit and proper persons, as inspectors for the purposes of matters which, in terms of this Act, fall under the jurisdiction of the province or the transport authority, as the case may be.

(b) The head of the provincial department must issue to every inspector so appointed a certificate of appointment and official proof of identity in the prescribed form.

(2) The functions of inspectors so appointed are to monitor compliance with this Act in the province or transport area concerned and to assist with the investigation and prevention of offences contemplated in section 126 which have been committed within the province, subject to provincial laws and the directions of the MEC and the head of the provincial department.

(3) In performing those functions, an inspector will have all the powers conferred on an authorised officer by or in terms of this Act.

(4) When performing any function or duty or exercising any power in terms of this Act, an inspector must on demand by any person in relation to whom the power, function or duty is exercised or performed, produce the certificate of appointment.

Impoundment of vehicles

123. (1) An authorised officer who is satisfied on reasonable grounds that a motor vehicle is being used by any person for the operation of public transport without the necessary permission or permit or contrary to the conditions imposed with regard thereto, may impound the vehicle pending the investigation and prosecution of that person for an offence mentioned in section 126(1)(a) or (b).

(2) A vehicle impounded under subsection (1) must be delivered to the head of the depot contemplated in subsection (4), who must retain the vehicle in the depot and release it to the person concerned only—

(3) Upon the second or subsequent impoundment of a vehicle which had been previously impounded, subsection (2) applies, with the changes required by the context, except that the impoundment fee will be increased in accordance with the scale so determined.

(4) (a) The MEC or a municipality by notice in the Provincial Gazette may designate any place defined in the notice to be a depot for the purposes of this section, and may in the same manner amend or withdraw such a notice at any time.

(b) The MEC or, where applicable, the relevant municipality must appoint any inspector or an authorised officer in the service of the municipality as the person in charge of the depot.

Presumptions and proof of certain facts

124. (1) A document which purports to be a permission issued under this Act, or a permit issued under a previous law or a copy of such a permission or permit certified to be a true copy, will on mere production in any prosecution for an offence mentioned in section 126(1), where the possession or contents of such a permission or permit may be relevant, be admissible in evidence as proof that it is such a permission or permit which had been lawfully issued, or that it is a true copy thereof as the case may be and of the truth and accuracy of the particulars thereof.

(2) A document which states that the motor vehicle described therein is registered, under the relevant law, in the name of a person specified therein as the owner, and which purports to have been issued under such a law by an employee of the registering authority for motor vehicles of the place where the vehicle was so registered, will on mere production in a prosecution under this Act, be admissible as sufficient proof of person’s registered ownership of the vehicle and of the truth and accuracy of the particulars contained therein.

Powers of authorised officers

125. In addition to the functions and duties imposed on an authorised officer by or in terms of this Act, an authorised officer may—

(2) (a) Where an authorised officer finds a vehicle used for public transport under the authority of a permission or permit to be so defective as to be a danger to persons or property, the authorised officer may order the driver or other person in charge of the motor vehicle, to surrender that permission or permit, as well as all distinguishing mark relating to the vehicle, and prohibit that driver or person forthwith to use the vehicle for public transport.

(b) The permission or permit so surrendered, will be retained by the officer until the holder of the permission or permit has satisfied the officer that the defects have been remedied and that the vehicle is in a roadworthy condition, the onus of proving which will rest on the holder of the permission or permit.

Offences and penalties

126. (1) A person is guilty of an offence—

(2) Where a person is convicted of any one of the offences mentioned in—

(3) Whenever a manager, agent or employee of the holder of a permission or permit performs or omits to perform any act which, if the holder of a permission or permit had performed or omitted to perform that act personally, would have constituted an offence in terms of subsection (1), that holder will be guilty of that offence if—

127. (1) Any province may establish a provincial transport appeal body to hear appeals relating to applications in connection with intraprovincial transport and where such a body is not established, such appeals must be noted with the Transport Appeal Tribunal established by section 3 of the Transport Appeal Tribunal Act, 1998 (Act No. 39 of 1998), (called the Tribunal in this section) in terms of this section.

(2) Such a provincial transport appeal body must exercise or perform its powers, functions and duties independently, fairly and impartially.

(3) A person who has any direct financial or business interest in any sector of the public transport industry may not be appointed or remain as a member of such an appeal body.

(4) A member of such an appeal body must recuse himself or herself in any matter or proceeding where he or she has or could reasonable be expected to have a financial or other conflict of interest in the outcome of any decision by the appeal body.

(5) (a) Any interested person may make a written request that a member of such an appeal body recuse himself or herself where the person has reason to believe that the member has or could reasonably be expected to have such a financial or other conflict of interest and such a request must specify detailed reasons.

(b) The member must give due regard to such a written request and decide whether or not to recuse himself or herself in the relevant circumstances.

(6) Appeals concerning interprovincial transport must be noted with the National Transport Commission in terms of the Road Transportation Act, 1977 (Act No. 74 of 1977) or other provincial legislation or to the Tribunal in terms of the Transport Appeal Tribunal Act, 1998 (Act No. 39 of 1998), whichever is applicable.

(7) Appeals concerning cross-border international road transport must be made to the National Transport Commission in terms of the Road Transportation Act, 1977 (Act No. 74 of 1977) or to the Tribunal in terms of the Transport Appeal Tribunal Act, 1998 (Act No. 39 of 1998), whichever is applicable, in terms of the Cross-Border Road Transport Act, 1998 (Act No. 4 of 1998).

(8) Bodies considering appeals in terms of this section shall be bound by the provisions of applicable transport plans.

128. (1) Subject to section 127, and except as otherwise provided in this Act, a planning authority which or a person who—

and is affected by an act, direction or decision of that board, may, in the manner and within the time prescribed, after the board has performed the act or given the direction or decision, appeal against that act, direction or decision to the Tribunal.

(2) The Tribunal must receive and, subject to any applicable regulations, consider an appeal lodged with it in terms of subsection (1) and may, in its discretion—

(3) The chairperson of the Tribunal or a member thereof nominated by the chairperson, may in his or her discretion and without giving prior notice to or hearing an interested party—

(4) In considering an appeal in terms of subsection (1), the Tribunal shall be bound by the provisions of applicable transport plans.

(5) An act, direction or decision of the Tribunal under subsection (2)(b)(i) or (c) shall be deemed to be an act, direction or decision of the Board.

129. Where, at any time before the commencement of this Act—

130. This Act binds the State.

Short title and commencement

131. This Act is called the National Land Transport Transition Act, 2000, and comes into operation on a date to be determined by the President by proclamation in the Government Gazette.

Background

The Bill has been prepared pursuant to the White Paper on National Transport Policy that was approved by the Cabinet and published in 1996, the recommendations of the National Taxi Task Team (NTTT) in 1995 and 1996 which were approved by the Cabinet and the recommendations of the Moving South Africa project recently undertaken by the National Department of Transport. The Bill is also the product of various consultative endeavours undertaken since 1995, with the provinces, local government, other relevant departments in the national sphere of government, the bus, rail and minibus taxi industries and organised labour. The Bill has also been prepared taking into account the provisions of the Local Government: Municipal Demarcation Act, 1998, the Local Government: Municipal Structures Act, 1998 and the latest available version of the draft Local Government: Municipal Systems Bill. As regards vehicle standards, driver and vehicle fitness and related issues, the Bill refers to the Road Traffic Act, 1989 or replacing road traffic legislation, and is intended to function within the ambit of this legislation. The approach followed and principles contained in the Bill have been agreed to by the provinces and metropolitan authorities through the MINCOM structure.

The Bill is designed to bring about a fundamental restructuring of the laws regulating land transport in the country, with the emphasis on public (passenger) transport. It was decided that the full policy of the National Department of Transport, as formulated in consultation with the provinces, cannot be implemented immediately due to the need to dovetail it with the new and proposed local government legislation. For this reason the Bill is transitional in nature, and is scheduled to be replaced by final legislation within the next three years. The Bill therefore also sets the scene for the long term restructuring of the land transport system as envisaged by the Moving South Africa Action Agenda.

By providing for formalisation and regulation of the minibus taxi industry, the Bill will act as an invaluable tool for the government to achieve order and harmony in the industry and is essential for the implementation of the envisaged minibus taxi recapitalisation project.

A working document of the full version of the Bill, catering for the short, medium and long term, was published for comment on 20 December 1996 and a draft bill was approved by the Cabinet during May 1997.

Redrafting of the Bill

The Bill as published was rejected by MINCOM in February 1999. It was referred to a drafting committee consisting of representatives of the three spheres of government. A new version of the Bill was drafted by the drafting committee and approved by COLTO on 27 July 1999 and by MINCOM on 3 September 1999. The Bill was published again for comment on 10 September 1999, some revisions were made, and the final version of the Bill was approved by COLTO on 19 October 1999 and by MINCOM on 8 December 1999. The Bill focuses on the short term, as it is planned to draft a final bill at a later stage. This Bill sets the stage for medium and long term policy implementation.

Structure of the Bill

The Bill is divided into the following four chapters:

Chapter 1 deals with introductory matters. Chapter 2 is designed to deal with matters of national concern contemplated in section 146(2) of the Constitution, and to take precedence over all provincial laws dealing with similar matters (see clause 3 in that regard). Chapter 2 will therefore apply in the provinces, as setting national norms and standards and applying national land transport policy. Chapter 3 deals with matters of provincial concern, and will apply in each province unless a particular province promulgates or has promulgated its own legislation to replace the provisions of Chapter 3 (see clause 2(2) of the Bill and the definition of "replacing provincial law"). Chapter 4 deals with general matters and, like Chapter 1, will apply throughout the country.

Contents of the Bill

Part 1 of the Bill, which also constitutes Chapter 1, deals with introductory matters, i.e. definitions and the constitutional application of the Bill. The definitions of "minibus" (9 to 18 persons excluding the driver) and "midibus" (19 to 35 persons excluding the driver) have been formulated to provide for the proposed project to recapitalise vehicles used for minibus taxi-type services.

Part 2 deals with national land transport principles and policy. Clause 4 lays down principles that will apply to land transport policy in the country. Clause 5 provides that the Minister of Transport in the National sphere of government, called "the Minister", will also be able to make known national land transport policy by publishing it in the Government Gazette. Part 3 also empowers the Minister to undertake various functions related to land transport and provides for the establishment of a national, integrated land transport information system. This system will provide the National Department with the information and statistics that it needs to fulfil its functions of co-ordinating land transport and improving the situation with regard to the provision of adequate and affordable transport for the public.

Part 4 provides for functions of the Members of the Executive Councils of the Provinces responsible for transport (MECs), similar to those of the Minister, but at provincial level.

Part 5 provides for the establishment of transport authorities for transport areas. The MEC responsible for transport and one or more municipalities may by agreement establish a transport authority (TA) for the area, which will be known as a transport area. Where an area has been declared a metropolitan transport area (called an MTA) under the Urban Transport Act, 1977, the municipalities within the MTA will likewise be able to establish a TA. The core cities of metropolitan transport areas will, however, not be obliged to change their status to that of a TA. Transport areas will be able to extend across provincial boundaries.

The Bill lays down requirements for agreements establishing TAs, called "founding agreements", which must be published after they have been concluded. The Bill also lists factors to be considered when determining the boundaries of transport areas. It provides for functions and competencies of TAs and provides for their dissolution.

The functions of TAs will be to formulate transport policies for their areas and to co-ordinate modes of public transport by preparing various types of transport plans as a planning authority. These plans will be implemented to integrate modes (bus, rail and taxi) by making recommendations for the issuing of permissions (authorisations to operate public transport services). They will be responsible for entering into contracts with public transport operators for the provision of services, once the MEC has assigned this function to them. They will have to see that the community in their area, and those travelling to, from or through it, are adequately served by public transport.

A founding agreement may provide that the professional, technical, administrative and other work of a TA may be performed by one or more departments of the municipalities concerned, or by a separate body established for this purpose and called a "transport executive". The MEC and two or more TAs will be able to form joint transport executives.

Part 6 provides for the Minister to make money available to provinces for land transport from money appropriated by Parliament for this purpose, subject to conditions that the Minister may impose. The Minister may also make money available directly to TAs in this manner. Likewise, the provinces will be empowered to make this money received available to TAs and municipalities in their areas for land transport. Municipalities will be empowered to make appropriations to TAs of which they are a part. The Bill provides for annual budgets to be prepared by TAs, and will regulate their financial affairs.

Part 7 provides for land transport planning. The Bill lays down general principles that will have to be considered by all those involved in planning transport services. Each MEC will be empowered to prescribe such principles and/or land transport policy for the relevant province by notice in the provincial gazette. The national Department will be required to draw up an annual national land transport strategic framework for the country for a five year period corresponding with the Department’s financial year. Provinces will also be required to draw up provincial transport frameworks on an annual basis, by a uniform date to be determined between the MECs and made known in the Government Gazette. The Bill provides that the following authorities will be "planning authorities":

Planning authorities will be required to prepare some or all of the following plans:

Where transport planning conflicts with land development objectives or planning and the matter cannot be resolved between the (transport) planning authority and the municipality concerned, the matter will have to be referred to the MEC for resolution in consultation with the MEC responsible for land affairs. Transport planning will have to be undertaken in consultation with relevant interest groups in the manner prescribed by the MECs.

Part 8 and the corresponding provincial part provide that each MEC must establish a single permissions board for the province, with members who are impartial and have no financial interest in the public transport industry. Such boards will be responsible for dealing with applications for the granting, renewal amendment or transfer of permissions (i.e. authorisations to undertake public transport). These Parts also provide for related matters such as powers and functions of the boards and qualifications for membership. A province will be able to make laws providing for the functions of the board to be transferred to similar bodies to be established by transport authorities, in respect of applications related to transport within their transport areas, but only if the MEC is satisfied that the particular transport authority is competent to do so and is performing its functions satisfactorily. The boards will be able to establish satellite offices in regions of the province for the convenience of the public. The satellite offices will assist the public in making applications for permissions, will receive applications and will issue permits and distinguishing marks to be placed on vehicles.

Part 9 and the corresponding provincial part deal with permissions to undertake public transport services. To implement the envisaged taxi recapitalisation project, the Bill provides that only vehicle types approved through this project will be allowed to be used for public transport after a date to be determined by the Minister, which may not be earlier than 1 October 2006. Furthermore, by a date to be determined by the Minister, which may not be earlier than 1 October 2004, no new permissions may be granted for vehicles other than the new, approved ones (whether as new permissions, or by way of renewal, amendment or transfer of an existing permission or permit). The approved vehicles will be—

Any permit authorising public transport services validly issued before the date of commencement of the Bill, when adopted by Parliament and becoming law, will remain valid only for a limited period, within which the holder will have to apply to the relevant permissions board to convert it to a permission. The MEC, by notice in the provincial gazette, will determine a date by which all permits must have been converted for the purposes of this section. The MEC will be able to defer that date in consultation with the Minister. Any permit not so converted within that time will lapse. Permits issued for an indefinite period will be converted to permissions that are also valid for an indefinite period. Permits issued for a definite period will be converted to permissions valid for the same period. Permits issued on a radius basis will have to be converted to permissions that specify particular routes or, in limited circumstances specified in the Bill, to specified, particular areas. Holders of permits will not be able to convert them to permissions unless the permit is active in the sense that the services authorised by the permit have been provided uninterruptedly for a period of at least 180 days before application is made for conversion.

Regarding new permissions, no one will be entitled to a permission as of right. Application will have to be made to the relevant permissions board for a permission, which will be granted or refused in terms of relevant transport plans if the applicant has the ability to provide the service and is not disqualified by previous convictions for offences. Only one permission may be issued per vehicle, if the vehicle is acceptable for the service, and only to the owner of the vehicle, as defined in the Road Traffic Act, 1989. Persons directly involved in evaluating applications related to permissions, preparing permissions strategies, processing applications for registration or undertaking law enforcement related to public transport will not be allowed to hold permissions.

Where a permission will authorise services other than charter services in the area of a planning authority, the board will have to inform that authority of the application for the permission and allow it time to make recommendations. The board will be obliged to take into account such recommendations and the provisions of relevant transport plans. Permissions boards will invite applications for permissions for services not subject to a subsidised service contract or a commercial service contract at the request of a planning authority, where the services are provided for in transport plans. Where such a contract has been awarded, the board must issue a permission to the operator for the duration, and subject to the conditions, of the contract. In the case of a non-contracted service, the board will have to consider the matters set out in the Bill.

Holders of permissions will not be allowed to hire them out to other persons. (However, in the case of contracted services, sub-contracting will be allowed in specified circumstances.) Vehicles specified in permissions providing services in terms of public transport plans, will not be able to be specified also in permissions for long distance services, unless the planning authority specifically approves this.

Exemptions from the definition of "public transport" services have not been dealt with as the exemptions contained in section 2(2) of the Road Transportation Act, 1977, or replacing provincial legislation, will apply. A significant change from the status quo, is that operators conveying learners and students will require permissions, except for sport or educational tours or holiday or sightseeing tours where the educational institution owns the vehicle or it has been set aside for the use of that institution.

Temporary permissions will be required for special events in terms of section 20 of the Road Transportation Act, 1977 or replacing provincial legislation. Each province will be able to make different arrangements in this regard if it so wishes.

Part 10 deals with "regulated competition", and is based in the White Paper's recommendation that competition should be "for routes but not on routes". Where contracts have been concluded for subsidised services before the date of commencement of the Bill (if adopted by Parliament and becoming an act), these will have to be converted to subsidised service contracts. All new subsidised services will have to be put out to tender. To qualify as a tenderer for such a contract or a commercial service contract, an operator will have to—

A municipal or parastatal operator who is not liable to pay income tax may qualify, once only in respect of a particular service, where the service was operated on 1 October 1996 and the service was not previously subject to an interim contract or a current tendered contract.

Municipalities as such will not be allowed to tender for subsidised or commercial service contracts, but a body established by a municipality to operate public transport services will be able to do so if financially ringfenced. The concept of "financial ringfencing" means that the entity is a separate business unit and receives no unfair financial support from any sphere of government, either directly or indirectly. The concept is explained in the Bill.

Where in the course of rationalising public transport services in its area, a planning authority determines that services authorised by permissions are no longer required, it will have to try to offer the holder of the permission alternative services, failing which it may apply to the board to withdraw the permission. The board will be empowered to withdraw the permission after allowing the holder to make representations, and having considered those representations, in specified circumstances, provided that the holder is compensated. Where compensation has not been agreed upon between the planning authority and the holder, the parties may approach the High Court having jurisdiction to resolve the matter.

Part 12 and the corresponding provincial part deal with the registration of minibus taxi associations, their members, and persons who do not belong to such associations (called "non-members"). A National Taxi Register must be established to contain information related to such registration, and a provincial taxi register for each province. Each MEC will have to appoint a provincial taxi registrar. (These registrars have already been appointed in terms of provincial laws or administrative processes.)

To qualify for full registration, taxi associations will have to comply with the following:

Associations whose members do not all hold permits or permissions, will be able to apply for provisional registration if a specified minimum percentage of their members hold permits or permissions or have applied for them. They will also have to comply with requirements regarding minimum time of existence and minimum membership. Provisionally registered associations will have to have constitutions that comply with the prescribed requirements and their members will have to subscribe to the prescribed code of conduct, but provision will be made that they may be exempted from certain of these requirements.

All taxi associations registered or provisionally registered before the date of commencement of the Act in terms of provincial laws, will be deemed to be provisionally registered. This will not prevent them for applying directly for full registration if they comply with the requirements.

According to Chapter 3 (the "provincial Chapter"), persons will be allowed to register as non-members if they—

In addition, a person will be able to register as a non-member either where there is no registered association on the route or routes where the applicant’s transport services are being operated; or, where there is such an association, only if—

Non-members which are companies, close corporations or other juristic persons, will only qualify for registration if they do not have two or more shareholders or members who operate or operated services which are substantially the same as the public transport services operated by the company. This provision is designed to prevent splintering of associations and other groupings of operators.

Registered associations, members of registered associations and non-members will receive registration numbers. The MECs will be required to liaise with one another to ensure that numbers issued are not duplicated. They will also receive registration certificates or provisional registration certificates, as the case may be. A distinguishing mark will be issued for each vehicle operated by a member of a registered association or by a registered non-member. Only associations and operators registered under the Act will be entitled to certain financial and other benefits provided by the government, by TAs, by core cities and by other organs of government.

The Registrar will be able to cancel or suspend the registration of associations and non-members for various reasons, such as non-compliance with its constitution or the code of conduct, as the case may be.

Part 18 deals with law enforcement. Provincial transport departments will be empowered to appoint employees as road transport inspectors to monitor compliance with the Act and assist with the investigation and prevention of offences. This Part also provides for increased powers to impound vehicles operating without proper permissions or permits. It is envisaged that the Administrative Adjudication of Road Traffic Offences Act, 1998, and the Road Traffic Management Corporation Act, 1999, will eventually be made applicable to offences created by this Bill.

Chapter 4 deals with general matters. It provides, among other things, that provinces may establish appeal bodies to hear appeals relating to applications concerning permissions for intra-provincial services. Where no such body is established, appeals will be lodged with the Transport Appeal Tribunal established by Act 39 of 1998. Appeals concerning inter-provincial and cross-border (international) services must be lodged with the Transport Appeal Tribunal.

Consultation

A more comprehensive version of the Bill was published for comment as a working document in December 1996. Copies of the Bill were also sent to various stakeholders. At that stage it was couched in the form of a national bill and a model provincial bill, but the issues covered were substantially the same. A large number of comments were received, considered and incorporated where appropriate. Various meetings were held with the provinces, metropolitan municipalities and other stake holders to discuss the provisions of the Bill in detail.

The Bill was referred to a drafting committee consisting of representatives of the three spheres of government in February 1999. A new version of the Bill was drafted by the drafting committee and approved by COLTO on 27 July 1999 and by MINCOM on 3 September 1999. The Bill was published again for comment on 10 September 1999. Meetings were held with stakeholders, such as Transnet, the South African Rail Commuter Corporation Limited, representative structures of the bus and taxi industries, representatives of organised labour and commuter organisations. Provincial workshops were also held during September and October 1999 in all of the provinces, to which all role players were invited. The necessary revisions were made to the Bill, and the final version thereof was approved by COLTO on 19 October 1999 and by MINCOM on 8 December 1999.

Procedure

The view is held by the State Law Advisers that the Bill should be dealt with in accordance with the procedure provided for in section 76 of the Constitution, inasmuch as the Bill falls within a functional area listed in Schedule 4 to the Constitution, namely "public transport".

Chapter 1   |   Chapter 2   |   Chapter 4