July 2002
BILL
To provide for the establishment of an Independent Ports Regulator and to provide for matters connected therewith;
Preamble
RECOGNISING that ports and habours are our national heritage
RECOGNISING the State’s commitment to the economic and social development of the South African transport system;
RECOGNISING the need for the establishment of an oversight body to monitor the activities of the National Ports Authority;
RECOGNISING the need to prevent the abuse of power vested over the ports authority and ensuring the equity of access to the ports and the provision of port services;
AND IN ORDER TO ENSURE:
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa as follows: -
INDEX
In this Act unless the context otherwise indicates-
"appoint" includes "re-appoint"
"board" means the Independent Ports Regulator board of directors established in terms of section 6
"licensed operator" means a person authorised by a license of the port authority to provide a port service or facility in the port in terms of this Act
"Minister" means the Minister of Transport or his duly appointed representative
"National Ports Authority" means the landlord of South African Ports.
"port facilities" means the means or equipment facilitating the performance of the ports
"port infrastructure" means the basic structure of a commercial port, including breakwaters, seawalls, channels, basins, quay walls, jetties, road, rail, services and utilities (e.g. water, lights, power, sewerage and telecommunications)
"port users" refers to direct port users (ship owners), indirect port users (importers/exporters), intermediate port users (agents) and final port users (producers and consumers). The final port users are those who really pay for port services. The country’s producers and consumers are therefore the final users of ports.
"ports" means any commercial port declared in terms of South African National Ports Authority Act.
- A juristic person known as the Independent Ports Regulator, comprising a board, a commissioner and staff is hereby established.
- The Independent Ports Regulator must issue licenses, whilst the National Port Authority is part of Transnet Limited, for: -
- the National Port Authority-Division of Transnet, as National Port Authority;
- any marine service provided by the Port Authority Division; and
- make such licenses in the form and specified period and may contain conditions that the Independent Port Regulator may determine
- Prevent the abuse of monopoly power and to ensure equity of access to the ports and to the provision of port services.
- Monitor and take appropriate action, if deemed necessary, to ensure that Transnet Limited, in the business relationship between Transnet Limited and the National Port Authority Division, does not derive an unfair advantage over other transport companies and that revenues generated by the port authority are used to the benefit of the authority, its customers and its contribution to corporate and social debt;
- Generally regulate the National Ports Authority in its activities as assigned to under this Act.
- The objects of the Independent Port Regulator are to: -
- Oversee the activities of the National Ports Authority;
- Prevent non –occurrence of rent seeking behaviour by the National Port Authority;
- Ensure acceptable levels of service to tenants and port users;
- Ensure impartiality and equity in the access to port services and the provision thereof;
- Provide an avenue of recourse for any allegations of anti-competitive behaviour.
- The Independent Port Regulator is established to:-
- regulate and monitor the National Port Authority in compliance with the National Ports Authority Act
- protect and act as the appeals body on complaints and grievances lodged against the National Ports Authority.
- The Independent Ports Regulator monitors, guide and take appropriate actions in support of the implementation of this Act and other relevant legislation.
The Independent Port Regulator must: -
- Prevent the abuse of monopoly power and ensure equity of access to the ports and the provision of port services
- Monitor and take appropriate action, if deemed necessary to ensure that the National Ports Authority, does not derive an unfair advantage over transport companies and that revenues generated by the port authority are used to the benefit and improvement of ports infrastructure and operations for the benefit of port users.
- Monitor compliance by the National Ports Authority with the National Ports Authority Act
- Monitor and take appropriate action, if deemed necessary, to ensure that the access to ports, and port facilities are provided in a non- discriminatory, fair and transparent manner.
- Issue directives to the National Port Authority
- Act as a mediator or arbitrator in accordance with the provisions of the National Ports Authority Act.
- Promote the reasonable interests and needs of port users
- Promote the safe; efficient; economic; and profitable operation of ports
- Encourage timely provision and improvement of facilities at ports so as to satisfy anticipated demands by port users
- Ensure fair competition between port operators as well as port service providers within a port
- Ensure that the National Port Authority provides reasonable service levels and complies with internationally accepted standards
- Interact with government departments and other bodies and institutions regarding issues of importance to the port sector, and
- Gather and store information relating to the national Port Authority’s activities.
- Exercise any power, perform any duty, or function assigned to it in terms of this Act or conferred upon it by an international agreement.
- Negotiate and enter into a performance contract with the Commissioner of the Independent Ports Regulator
- The Port Regulator consists of a minimum of five (5) and maximum of thirteen (13) members appointed by the Minister for five (5) years at a time, and such members may be re-appointed.
- Members appointed under subsection (1):
- must have adequate legal, technical, business, economical, development or other experience relevant to the maritime industry.
- must be available to fulfill their role as members;
- must demonstrate impartiality and objectivity;
- must be replaced or re-appointed in a manner that achieves a fair balance between continuity and capacity building
- The Minister may designate an official of the Department of Transport as chairperson of the Independent Port Regulator.
- If a member of the board of the Independent Ports Regulator with an exception of a member designated in subsection (3) for any reason ceases to hold office the Minister may appoint another person in his or her stead for the remainder of the term of office of the member.
- A member of the Independent Port Regulator may be paid for his or her Services an allowance determined by the Minister from time to time.
- No person may be appointed as a member of the Independent Port Regulator if that person: -
- Is not a South African citizen;
- Is a declared insolvent
- Has been convicted of an offense involving an element of dishonesty;
- Has any conflict of interest or potential conflict of interest that may affect his or her position as a member;
- All members must disclose their personal, professional and business interests on appointment to the Independent Ports Regulator and notify the chairperson whenever these change.
The Minister on recommendation of the chairperson of the board may at any time discharge a member of the board from office, if he or she-
- has been absent from more than two consecutive meetings without leave approved by the chairperson for each absence;
- notifies the chairperson in writing of his or her resignation, or in the case of the chairperson, notifies the Minister of the resignation in writing;
- materially breaches any duty imposed on him or her under this Act;
- ceases to fulfill any of the requirements stipulated in section (6).
- The Minister, must after consultation with the board, appoint a person with suitable qualifications as a Commissioner of the Independent Ports Regulator.
- The Commissioner, subject to the directions of the Independent Ports Regulator—
- is responsible for –
- the management of the day-to-day affairs of the Independent Ports Regulator;
- administrative control over the resources of the Independent Ports Regulator and members of staff appointed under paragraph (b);
- may, subject to paragraph (c), appoint staff members or contract with any person to supply such services as may be necessary to perform the work connected with the powers, functions and duties of the Independent Port Regulator;
- may be paid and pay staff salaries, allowances, subsidies and other benefits as may be approved by the Minister.
- The Commissioner must preside over all hearings brought before the Regulator
- Compile and submit performance and annual report on the activities of the Independent Port Regulator
- Enter into a performance contract with the independent Ports Regulator
- The Independent Ports Regular may meet as often as must be required for the proper performance of its functions.
- The chairperson upon, a written request of four (4) members, convene a special meeting to be held as soon as possible but not later than one week after the date of receipt of such request.
- The procedures to be followed at meetings are to be prescribed.
- The quorum for any meeting of the Independent Ports Regulator is a majority of its members.
- The decision of the majority of members present at a meeting constitutes a decision of the Independent Ports Regulator.
- In the event of an equality of votes on any matter, the chairperson has a casting vote in addition to his or her deliberative vote.
- The meetings of the Independent Ports Regulator are open to the public
- The Independent Ports Regulator must cause a record of its proceedings to be kept.
- The board must cause minutes of its meetings to be kept and copies of the minutes to be circulated to its members and the Minister
- Such minutes, when signed at a next meeting by the chairperson, are in the absence of proof of any error-
- regarded as a true and correct record of the proceedings;
- are prima facie evidence of those proceedings before a court of law, any tribunal or a commission of inquiry.
- Members of the Independent Port Regulator must-
- exercise all powers and perform all functions and duties required from them under this Act;
- act in a justifiable and transparent manner whenever the exercise of their discretion is required;
- at all times act in the interest of the Independent Port Regulator and not in their own or sectoral interests;
- act independently of any undue influence or instruction;
- recuse themselves from and refrain from voting on any matter pending before the Independent Port Regulator in which they have a direct or indirect interest;
- act in a manner that is required and expected from the holder of a public office.
- Any person whose rights are adversely affected by a decision of the National Ports Authority may appeal against that decision to the Independent Ports Regulator in terms of the National Ports Authority Act
- The appeal must-
- be lodged within 60 days from the date on which the decision was made known to the aggrieved party
- set out the grounds of appeal
- After considering both the grounds of appeal and the reasons for the decision by the National Ports Authority, the Independent Port Regulator must as soon as practicable-
- confirm, set aside or vary the decision
- substitute the decision of the National Ports Authority for its own
- Any decision of the Independent Ports Regulator must –
- be taken within a procedurally fair process in which all affected persons have the opportunity to submit their views;
- be based on facts and evidence;
- be in writing;
- include reasons for the decision.
- Any person affected by a decision of the Independent Ports Regulator will have access to a copy of the decision and reasons.
- Any person adversely affected by a decision of the Independent Ports Regulator may appeal against the decision or take it on review to a court having jurisdiction in the matter.
- Any person whose rights are adversely affected by a decision of the Independent Ports Regulator’s decision in its exercise of any powers in terms of this Act may have that decision reviewed by the High Court
- This review must-
- be lodged within 60 days from the date on which the Independent Ports Regulator pronounced its decision
- set out the grounds for the review
- The review must be proceeded with as if it were a review of a Magistrate’s Court decision in the High Court
- The funds of the Independent Ports Regulator consists of –
- money appropriated by parliament;
- penalties and fees paid for mediation, arbitration and other services rendered;
- donations or contributions received by the Regulator, with the approval of the Minister, from any source.
- The Regulator, must within reasonable limits, utilize its funds for the defrayal of expenses incurred by it in the performance of its functions in terms of this Act.
- The Commissioner must-
- open an account in the name of the Regulator with an institution registered as a bank in terms of the Banks Act, 1990(Act No.94 of 1990);
- deposit all monies received in terms of subsection (1).
- The Commissioner may, on behalf of the Regulator, invest any money received in terms of subsection (1) which is not required for immediate use-
- with the approval of the Minister, with the Public Investment Commissioners referred to in Section 2 of the Public Investment Commissioners Act, 1984 (Act No 45 of 1984);
- with such other institution as the Board and the Minister, with the agreement of the Minister of Finance may determine.
- The regulator may use interest derived from the investment contemplated in subsection (3) to defray expenses in connection with the performance of its functions in terms of this Act.
- The Regulator, may with the approval of the minister, granted with the agreement of the Minister of Finance: -
- authorize the establishment of reserve funds
- deposit those amounts as it considers necessary or expedient.
- The Independent Ports Regulator must in each financial year, at a time determined by the Minister, submit a statement of its estimated income and expenditure for the following financial year to the Minister for his or her approval, granted with the agreement of the Minister of Finance.
- The Independent Ports Regulator must exercise its fiscal, accounting and reporting duties in accordance with the provisions of the Public Finance Management Act, 1999 (Act No. 1 of 1999).
- The financial records of the Independent Port Regulator must be audited by the Auditor-General.
- The financial year of the Independent Ports Regulator is the period ending on 31 March in each year.
17. Reporting to Minister and Parliament
- The Independent Port Regulator must, in addition to any report required in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999), submit an annual report to the Minister within three months after the end of a financial year that shall include information on
- Particulars that the Minister may from time to time require in connection with the affairs and financial position of the Independent Port Regulator;
- Other matters that the Independent Port Regulator may from time to time deem necessary.
- The Minister must table in Parliament the annual report submitted to him or her in terms of subsection (1) within 14 days after it is so submitted if Parliament is then in ordinary session or, if Parliament is not in ordinary session, within 14 days after the commencement of the next session.
- This Act is called the Independent Ports Regulator Act, and shall be of full force and effect on a date to be determined by the President by proclamation in the Gazette.
- Different dates may be determined in terms of subsection (1) for the commencement of different provisions of this Act.