Amended National Ports Authority Bill 2003

Comments to the Portfolio Committee on Transport

18 June 2003

Siyabonga Gama

Chief Executive Officer

National Ports Authority

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Content

The transitional arrangements

The role of the regulator

Authority’s liability for the acts of a pilot

Other minor issues in the Bill

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NPA response = Transnet response

The Bill must be: Aligned with National Commercial Ports Policy Enacted in totality as soon as possible

NPA to have all the powers and responsibilities of the Authority, during each of the phases

To be deemed to be the Authority -during all three phases

NPA generally satisfied with provisions

Aligned with international best practices

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Fundamental issues

Ensure that NPA is able effectively to operate as the Authority during the first two phases (i.e. as a division and subsidiary of Transnet) clauses 3(1) and (4) provide for performance of the

Authority's functions

the Initial and Interim Authorities should be deemed to be the Authority

should provide that the Initial and Interim Authorities must perform the functions, and have all the powers, of the Authority

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Fundamental issues cont...

Should clearly provide for the transfer of staff, assets, liabilities, rights and obligations from the Initial to Interim Authority. clauses 26 and 27 provide for transfer from Interim to Final Authority

clause 3(4)(a) generally provides for transfer of assets, liabilities, rights and obligations from the Initial to Interim Authority

clause 26 should extend to the initial transfer from Initial to Interim Authority

should include a more detailed provision than clause 3(4)(a), along the lines of clause 27

in light of clause 3(5)(a), the Bill should provide for possible direct transfer from Initial to Final Authority

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Fundamental issues cont...

Transfer from the Interim to Final Authority should be structured as a transfer of shares. clause 27 currently provides for transfer of business as a

going concern;

transfer of shares:

removes uncertainty as to what is to be transferred

does not require the formation of a separate legal person and will not require the cession of existing contracts

would be preferable for tax purposes

NPA should be exempt from tax and other duties for both transfers

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Fundamental issues cont...

The powers of the Regulator should be clarified and limited clause 30(1) is too wide and uncertain

Chapter 5 relates to appeals and complaints

the Regulator's function should be to hear appeals and complaints against the decisions or actions of the Authority

the subject–matter of the appeals and complaints should be limited to claims that the Authority is abusing its position in:

unfairly preferring Transnet over other port users

unfairly discriminating against port users in relation to the Authority's services

persons whose rights are adversely affected by the actions of the Authority may lodge complaints

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Fundamental issues cont...

Some specific concerns with clause 30(1) the Regulator should not determine guidelines for

concessions or PPPs

no indication given of the directives that may be issued

the Regulator's jurisdiction over tariffs should be limited to allegations that the Authority is abusing its position in preferring Transnet

the provision relating to hearing appeals and reviews is too wide

Clause 30(1) should be deleted

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Authority’s liability for acts of a pilot

Exclusion of Authority's liability for acts of a pilot exclusion of liability should be retained

consistent with international practice

cost of additional insurance will increase port costs

the Authority's liability not otherwise limited, unlike ship owners

exclusions and limitations of liability are common

to provide some remedy to third party vessel, include provision deeming the pilot to be the servant of the owner or master of the vessel under pilotage

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Authority’s liability cont...

Regulations relating to exclusions and limitations of the Authority's liability

risk of extensive liability

detail should be included in regulations

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Some other issues in the Bill

The regulation of off-shore cargo handling facilities under (clause 66) should be consistent with the Petroleum Pipelines Bill:

PPRA should license the operation of the facility;

the Authority should license the location of such facility; and

Memorandum of understanding will be signed Regulator should have discretion not to investigate a particular

complaint (clause 48) The powers of the Regulator to make orders under clause 54

should be limited

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Some other issues in the Bill cont...

The Authority should be given a reasonable time to adjudicate on license applications (clause 57(6))

The Authority’s power to inspect under clause 63 should be broadened

Substantial alterations in tariffs should be discussed with the National Port Consultative Committee (clause 73)

The descriptions of cargo and berth dues should be corrected (clause 73)

Training and licensing of pilots should be the Authority's function (clause 78)

The Bill should protect confidential information relating to operations of the Regulator (clause 86)

Thank You