CHAPTER 4

GENERAL MATTERS

PART 19

General Matters

Appeals in general

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".

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