ECONOMIC REGULATION OF TRANSPORT BILL
THE Economic Regulation of Transport Bill was published in February for comment until March.
It set out to promote the economic growth and welfare of South Africa by promoting an effective, efficient and productive transport sector and to establish the Transport Economic Regulator and the Transport Economic Council, responsible to the minister.
The entire regulatory environment around transport is going to change, and the entities affected will bear the cost of that change. The bill provides that each of them will have to pay an annual fee to fund the costs of the regulator and the council. The bill will apply to the National Ports Authority, Transnet (specifically its rail transport and port terminal operations divisions), the Airports Company SA, the Air Traffic and Navigation Services Company, the Passenger Rail Agency of SA and Sanral. The regulator will be responsible for carrying out education, research, price-control approval, investigating complaints and enforcement.
The council will adjudicate, reviewing the regulator’s decisions, when an affected party applies for a review, and the decisions of regulated entities when the user of a facility or service provided or licensed by a regulated entity considers its rights compromised.
The bill gives the regulator the power to:
Investigate complaints and monitor regulated sectors, services and facilities for compliance.
Issue a compliance notice to a person or association the regulator believes has engaged in prohibited conduct.
Refer alleged offences to the National Prosecuting Authority.
The minister will appoint members of the board of the regulator and council, and can request a market inquiry in relation to any economic aspect of the transport sector and give a written direction to the regulator to investigate any related matter or circumstances.
The bill aims to:
Promote the development of an integrated system of economic regulation of transport of passengers and goods through airports or ports and by road or rail;
Promote efficiency, reliability, safety and performance in the management and operation of transport facilities and services, in accordance with recognised international standards and public demand;
Establish appropriate institutional arrangements and procedures to support the consistent economic regulation of transport facilities and services;
Enhance transparency in the management of transport facilities and services;
Promote appropriate investment in transport facilities and services; and
Promote the development of small and medium enterprises and the achievement of equality through measures designed to advance people or categories of people historically disadvantaged by unfair discrimination in transport.
The bill provides for criminal and administrative sanctions. Criminal sanctions relate to offences, and the administrative sanction of a directed price control reduction relates to prohibited conduct by a regulated entity.
The bill will repeal certain provisions of selected acts to bring an end to specialised sector regulators. So, for example, the ports regulator will be absorbed into the contemplated regulator and council entities.
It will leave much of the substantive law governing specific transport sectors in place, but will override those laws in any legislative procedural conflict.
Each regulated entity will have to submit a proposal to the regulator, at the prescribed intervals and in the prescribed manner and form, requesting approval of a price control for the facilities and services offered.
When considering such a submission, the regulator must consult interested parties and the public, and consider a range of factors in determining whether the proposal is fair and reasonable. Each regulated entity is also required to submit to the regulator:
Statistical information of the transport facilities or services it provides or has licensed others to provide; Forecasts of demand;
Development plans; and
Any material change in control of operators. Govender is a senior associate with over 15 years’ experience in maritime law. She holds BA, LLB, LLM
(maritime law) degrees from UKZN and has extensive experience in several aspects of shipping law, particularly ship arrests, admiralty litigation, emergency marine casualty response, ship finance, regulatory and general admiralty advice as well as ship and cargo sale and purchase. She is the vicechairperson of the Maritime Law Association Durban chapter.