Background

1. The impact of the Cross-Border Road Transport Act on road transport between South Arica’s neighbouring countries To inform the Select Committee on Public Services (SCoPS) of matters that constrain the implementation of the CBRT Act. Select Committee on Public Services, NCOP

2. Background • Taxis and buses have historically carried Lesotho and South African passengers to and fro between the two countries. • Historically, taxi operators from the Free State used to be part of the group that transported passengers from Lesotho into RSA and vice versa. • Due to misunderstandings between taxi operators from the two countries, there has been conflict that resulted in increased criminal activity. • Taxi operators in the Free State have felt left out as long distance taxi operators from Lesotho and Gauteng move passengers right through their areas of business. Select Committee on Public Services, NCOP

3. The committee’s questions In several meetings and oversight visits the committee raised questions about: (1) the manner how the CBRT Agency manages specifically taxi transport through the stipulations of the CBRT Act & the MoU. (2) Possible weaknesses in the Cross Border Road Transport Act (4 of 1998) and the rest of the legislative framework. Select Committee on Public Services, NCOP

4. Research objective To inform the Select Committee on Public Services (SCoPS) of matters that constrains the implementation of the CBRT Act. Select Committee on Public Services, NCOP

5. Research questions • What constrains the implementation of the Cross Border Road Transport Act? • Is it the Act? i.e. Is it the appropriate piece of legislation to ensure passenger road transport across the borders between South Africa and her neighbouring countries? • Is it the Agency? i.e. Does the Agency implement the Act so that passenger and taxi transport take place effectively and efficiently across the borders between South Africa and her neighbouring countries? Select Committee on Public Services, NCOP

6. The Act • Act 4 of 1998 brought to life the Cross Border Road Transport Agency (hereafter referred to as “the Agency”). • The Agency is legally mandated to establish a Board, a Regulatory Committee (RC) and an Inspectorate. • The Board should establish the RC and regularly report to the Minister of Transport on progress to implement its tasks (such as stipulations contained within the SADC MoU & the SADC) Protocol on Transport). • The Regulatory Committee amongst others, gives effect to permit applications and issuing, managing the Inspectorate and managing ranking and border freight (weighing) facilities. • The Inspectorate plays the key role of implementing regulations and inspecting freight and passenger road vehicles crossing borders. • The Agency further performs its mandate within the broader legal framework of the National Land Transport Act (5 of 2009), the National Road Traffic Act (93 of 1996, as amended), the Tourism Act (72 of 1993) and the Transport Deregulation Act (80 of 1988). Select Committee on Public Services, NCOP

7. Just for information purposes: The South African Customs Union (SACU) Memorandum of Understanding on Road Transport and the Southern African Development Cooperation (SADC) Protocol on Transport: • The SACU MoU on Road Transport was signed in 2005 between southern African countries. • At the time of the signing, conflict was at a high point. National and provincial taxi operator organisations hoped that the MoU would resolve on-going disputes between taxi operators from Lesotho and the Free State Province. • The MoU require an agency that functions optimally to implement its stipulations. The Cross Border Road Transport Act (4 of 1998) brought to life the Cross Border Road Transport Agency (hereafter referred to as “the Agency”). The Agency is legally mandated to implement stipulations such as those contained within the SADC MoU. The Agency further performs its mandate within the broader legal framework of the National Land Transport Act (5 of 2009), the National Road Traffic Act (93 of 1996, as amended), the Tourism Act (72 of 1993) and the Transport Deregulation Act (80 of 1988). • Except for the SACU MoU on Road Transport, the Agency’s work is further guided by a number of other multi-lateral agreements with neighbouring countries, such as the Southern African Development Cooperation (SADC) Protocol on Transport, and the Agreement on Communications and Meteorology. Select Committee on Public Services, NCOP

8. The research • In addition to the Cross Border Road Transport Act, the following pieces of legislation was analysed: • The National Land Transportation Act (2009) • The Free State Public Transport Act (2005) Select Committee on Public Services, NCOP

9. Research outcomes • The National Land Transport Act (2009) (NLTA): Prescribes national norms and standards that must be uniformly applied in all the provinces. • Section 5 (3) of the Act states that the Minister of Transport “is responsible for land transport arrangements with other countries regarding transport between the Republic and those countries, in collaboration with the Minister of Foreign Affairs (International Relations).” • Section 50 of the Act further suggests a close link in the operations of this Act and the Cross Border Act: “No person shall operate a road based public transport service, unless he or she is a holder of an appropriate license or permit issued for the vehicle concerned in terms of this Act.” • Section 75 deals with the interaction between public transport and cross border transport: Sub-section 1 of section 75 requires that a public operator who conducts cross border business should be “in possession of the necessary operating licence as required by this Act for the vehicle, in addition to any permit required by the Cross Border Act.” Select Committee on Public Services, NCOP

10. Research Outcomes Key finding 1: Road transport operators should have licences from authorities described in the NLTA as well as a permit from the Agency as described in the CBRT Act. • NOTE: The Free State Public Transport Act (FSPTA) give effect to the NLTA – cross border taxi operators should therefore have a licence/permit from the local and provincial authorities as well as the cross-border permit. The local and provincial licences/permits are general passenger road transport ones that certifies the vehicle and driver as suitable to transport passengers – it does not give the right to transport passengers across borders (or drop them within a short distance so that they can walk across). Select Committee on Public Services, NCOP

11. Research outcomes Key finding 2: • Section 23 (b) of the CBRT Act identifies the Agency as the only body authorized to “regulate access to the market by the road transport freight and passenger industry in respect of cross-border road transport by issuing permits.” • This refutes claims by taxi operators in the Free State that permits issued in terms of other pieces of legislation (NLTA, FSPTA) allow them to transport passengers across or close to the border. Select Committee on Public Services, NCOP

12. 2. The CBRTA, the NLTA and the FSPTA – the issuing of permits: CBRTA, Section 25 - the application of permits and the CBRT Agency’s duty to process and issue permits: • Taxi associations have consistently stated that they wanted the CBRT Act to be amended as it does not work for them and causes confusion. • At the basis of this lies a perception that the Act is not precise about whether multiple persons may hold permits for the same vehicle or that permits are only issued to members of taxi associations. • Related to this is a concern that operators on both side of the border may hold membership of associations in both countries and therefore can get permits to transport passengers to whatever ranking facility that taxi associations may set up. (Court case: Hari and others - Marikana Lesotho Long Distance taxi Association, BTA Platinum Chrome Taxi Association & Bleskop Taxi Association in the High Court of SA, Bophuthatswana Provincial Division). • A further challenge exist related to ranking facilities and its management by the Agency. Select Committee on Public Services, NCOP

13. Does the CBRTA, NLTA, and FSPTA together cause ambiguity and lead to the constrains? For legislation to have impact and guide practise, they must be unambiguous as they stand. Where their implementation requires interrelated pieces of legislation to be interpreted, such pieces of legislation must also be unambiguous. Once pieces of legislation and regulation leave space for too many different interpretations, ambiguity threatens clear lines of authority, accountability, and the operations of agencies that are responsible for implementation. Key finding 3: After a thorough analysis of the CBRTA, NLTA, FSRTA and regulations that form the legislative framework within which the Agency should give effect to the smooth running of cross border road transportwe found that the related pieces of legislation is clear enough to guide practise and should have the effect of cross border road transport taking place smoothly. Select Committee on Public Services, NCOP

14. So, why does the CBRT-Act (the work of the Agency) not impact positively on cross-border road transport between the Free State and the MKL? • The “heart of the problem”: • In the next few slides we present the heart of the problem from the points of view of key stakeholders. • Thereafter we look at operational matters that constrain the Act. (The basis of recommendations that the committee may consider making.) Select Committee on Public Services, NCOP

15. The “heart of the problem” 1. For the Agency : 1.1. Non-compliance to provisions of SACU MoU on Road Transportation; 1.2. Operators’ failure to convert old order permits and operating licenses that purport to authorize cross-border transport to cross-border permits within the legislated timeframe (before 28 February 2009); 1.3. Existence of illegal taxi ranking facilities located at various ports of entry as a direct outflow of the impeded flow of passenger traffic. 2. For the Free State Department of Police, Roads and Transport : 2.1. Operations within the cross border field falls squarely within the competency of the Agency and its Board who should issue cross-border permits, manage ranking facilities and ensure compliance through an inspectorate. 2.2. The issuance of such permits by the Agency to Free State operators has not taken place properly and causes frustration within taxi associations and operators; 2.3. Free State operators lost the opportunity to get cross border permits - a number of operators are said to be operating from residential places to and from undesignated ranks in Lesotho – the Agency has not done well managing ranking facilities. 3. For the Free State Taxi Operators the problem consists of the following: 3.1. The Free State Operators do not recognise the Cross Border Road Transport Agency and the Act as amended including provisions of the NLTA – Section 75; 3.2. Operators prefer to operate and control operations in the Free State Province viz. Fouriesburg, recognising an agreement entered into by them during 2005 ( Agency and/or Government were not signatories to this agreement); and 3.3. The Free State Operators are refusing to have Joint Ventures with a cross border taxi association in Lesotho (LPTCA), which the Lesotho Government has confirmed as the only recognized Cross Border Taxi Association - this requirement is part of the Cross Border Act. Select Committee on Public Services, NCOP

16. Attempts to resolve the problem – the suggested solution by the DoT, FSDPRT & CBRT Agency • On 18 September 2012, the DG DoT, the Agency and FSDPTA reported to us on the Special Dispensation. • The following were listed: 1. Facility sharing – Ladybrand in the FS; 2. Legislating a transition period during which all who purport to do cross border road passenger transport would apply for the correct permit – this already took place after the amendment to the Special emergency measures CBRT Act in 2008 – on the Free State side, the success was limited… 3. MEC for FSDPRT, the Agency’s Regulatory Committee and SAPS would operate under emergency measures to normalise the border situation – applicable for 21 days under section 46A of the CBRT Act. Select Committee on Public Services, NCOP

17. The Actual “Heart of the Problem” • The legislation is not the heart of the problem • Legislative amendments would not lead to the smooth running of cross border passenger road transport • Internal operational weakness within the CBRT Agency is the actual heart of the problem. Select Committee on Public Services, NCOP

18. Operational matters that require serious attention: • Permit management system • Permit administration • Permit monitoring As monitoring depends on these two prerequisites, the next 2 slides mainly deal with the first two bullets. Select Committee on Public Services, NCOP

19. Permit Management System: • There is a need to issue permits in a uniform way. • The C-BRTA has not yet developed a rationale for the award or rejection of permit applications – especially during peak periods – Easter, December. • The Agency’s computerized system to ensure operational control at border posts exist but is poorly managed with low service delivery level achieved. • NATIS is not operational within the C-BRTA. In other words there is no active link and all enquiries have to be done telephonically. NATIS would help with verification of owners and obtaining details of previous convictions. At present inspectors have to contact local authorities to obtain this information. Select Committee on Public Services, NCOP

20. Permit administration • Freight and passenger transport lists are treated by the same administrators & leads to poor service delivery to passengers and businesses of RSA & MKL - poor quality control at different land border posts. inability to effect penalties and ensure the road transport operators adhere to the Act and regulations; • Staffing issues in the inspectorate – experience, abilities and vacancy rate. Select Committee on Public Services, NCOP

21. Recommendations (1) • The committee alerts the Executive Authority of transport and the MEC of the FSDPRT that the Special Dispensation referred to in the 18 September 2012 meeting may not yield results even though it is going to amend parts of the legislation and regulations. • The committee suggests that an independent investigation be initiated into the Regulatory Committee and the Board of the Agency with special attention to: 2.1. the permit management system, 2.2. permit administration, and staffing issues in the inspectorate – note time delays of up to 3 months for finalisation of long term 3 month permits (means continuous application process); 2.3. the operational efficiency and effectiveness of the Agency’s inspectorate that should issue penalties and execute them; 2.4. specific attention to the uniform issuing of permits between the FS & MKL. Select Committee on Public Services, NCOP

22. Recommendations (2) The Agency is not responsible for policing – the provincial authorities, local municipalities, Agency representatives and taxi associations serve on Route management Groups – these have proven to work and must be sustainably operated. • The committee recommends that the Route Management Groups previous initiatives to establish the following should be vigorously pursued: 1. one-stop border controls (located on one side of a border, serving both countries), 2. introduce a consolidated (single-document) border documentation, 3. an electronic documentation, and to promote pre-clearance for passenger road transportation vehicles and drivers. 4. In addition, that documentation, procedures and computer systems should be uniform throughout the SADC member states, that documentation should be multilingual (in all the main languages of the member states), and that a Univisa equivalent to the Schengen Visa be introduced. Select Committee on Public Services, NCOP

23. References and sites visited • CBRTA Website • Department of Transport Website • Presentation to the Select Committee on Public Services by the Department of Transport (DG), CBRT Agency and Free State Department of Police, Road and Transport on the RSA/Lesotho Taxi Operations Challenge. • D J Volschenk and B A Maluleka - work for the CSIR: The Implementation of a Cross-Border Road Transportation System • http://www.schengenvisa.cc/ - “The Schengen visa is a “visitor visa”. It is issued to citizens of countries who are required to obtain a visa before entering Europe.” • The Cross-Border Road Transportation Act 4 of 1989 • The Cross-Border Road Transport Amendment Act, No. 12 of 2008 • Amendment of regulations to the Cross-Border Road Transportation Act 4 of 1989 – 31 March 2011 • The National Land Transportation Act • The Free State Public Transport Act Select Committee on Public Services, NCOP