A BROAD OVERVIEW OF THE NATIONAL LAND TRANSPORT ACT NO.5 OF 2009 - Presentation to the Competition Commission 7 June 2018
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A BROAD OVERVIEW OF THE
NATIONAL LAND TRANSPORT ACT
NO.5 OF 2009
Presentation to the Competition Commission
7 June 20182 Contents • 1. Background • 2. Contents of the Act • 3. Policy behind the Act • 4. Overall approach and major changes • 5. Provincial legislation • 6. Other relevant legislation • 7. Institutional arrangements • 8. Transport planning • 9. Funding • 10. Contracting for PT services • 11. Conversion of permits to operating licences • 12. Exemptions • 13. Application for an operating licence
3 Contents cont. • 14. Renewal, amendment or transfer of an OL • 15. Metered taxi services • 16. Electronic –hailing services • 17. Charter Services • 18. Transporting of scholars, students, teachers etc. • 19. Courtesy services • 20. Tourist transport services • 21. Other OL issues • 22. Registration • 23. Cross-border road transport • 24. Law enforcement • 25. Appeals
4 1. Background • The National Land Transport Act 5 of 2009 (NLTA) was brought into operation on 8 December 2009 (some sections on contracting and on the functions of the spheres of Government on 31 August 2009). • It repealed the National Land Transport Transition Act 22 of 2000 (NLTTA). • The NLTA Regulations were published on 17 December 2009 (Govt. Gazette 32821 – Notice R.1208). • NLTA Regulations on Contracting for PT Services were published on 31 August 2009 (Notice R. 877 in G Gazette 32535).
5 2. Contents of the Act • Chapter 1: General provisions • Chapter 2: Institutional arrangements for land transport • Chapter 3: Funding arrangements for land transport • Chapter 4: Transport planning • Chapter 5: Contracting for public transport services • Chapter 6: Regulation of road based public transport • Chapter7: Law enforcement • Chapter 8: Appeals • Chapter 9: Transitional and final matters
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3. Policy behind the Act
• The White Paper on National Transport Policy, 1996 still
applies.
• The main policy behind the Act is the Public Transport
Strategy and Action Plan approved by Cabinet in 2007.
• 2 major thrusts of PT Strategy & Action Plan:
• First thrust: Modal Upgrading: the current initiatives to
improve our PT system such as taxi recap & Railplan;
• Second thrust is about implementing high quality, integrated,
mass rapid public transport networks (IRPTNs).7 4. Overall approach and major changes • Existing public transport (PT) services to be incorporated into integrated PT networks (IPTNs) i.t.o. contracts with the municipal planning authority (negotiated, subsidised or commercial contracts). • Existing taxi and bus operators to be included in the contracts. • Move from operator planning/control on net contracts to authority control by gross contracts. • Gross contracts means the authority plans the services and collects and keeps the fares: the operator is paid on a rate per km basis.
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4. Overall approach and
major changes cont.
• The NLTTA had a Chapter 3 that provinces could change:
New Act is a more uniform national law.
• The NLTTA approach led to various problems: different
laws and procedures in each province.
• More detail in regulations under new Act.
• Previous institutional structures were the Operating
Licensing Boards (OLBs), Registrars and transport
authorities.
• The Act creates new entities: National PT Regulator
(NPTR), Provincial Regulatory Entities (PREs), Municipal
Regulatory Entities (MREs), Intermodal Planning
Committees etc.9
4. Overall approach and
major changes cont.
• OL function and existing contracts can be assigned to
municipalities.
• In terms of the Amendment Bill, only OL function can be
assigned.
• New operating licences (OLs) must be issued in terms of
transport plans (ITPs).
• Longer validity period for OLs (7 years maximum –
previously 5 years).
• The Act provides for various service types, e.g. metered
taxis, lift clubs, courtesy services, tuk-tuks, car-plus-driver
etc.
• Accreditation system for tourist services (maybe other modes
later).10 5. Provincial legislation • The NLTA is designed to provide a uniform national system. • Provinces may make laws on public transport i.t.o the Constitution. • Provincial laws must be read with the NLTA where possible and may contain additional provisions. • In case of a conflict, section 146 of the Constitution applies: The national law overrides if it applies uniformly regarding the country.
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6. Other relevant legislation
• The Constitution (e.g. provisions on assignment of
functions).
• The National Road Traffic Act 93 of 1996 and NR Traffic
Regulations, 2000: fitness of drivers and vehicles, rules of
the road etc.
• Promotion of Administrative Justice Act 3 of 2000 (PAJA)
– fair administrative processes.
• Promotion of Access to Info. Act 2 of 2000.
• Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000.
• Local Government legislation e.g. Municipal Systems Act
32 of 2000: e.g. on assignment of functions.12 6. Other relevant legislation cont. • Cross-Border Road Transport Act 7 of 1998 – deals with international road transport. • Intergovernmental Relations Framework Act 13 of 2005. • The Division of Revenue (DORA) Acts 12 of 2009, 1 of 2010 and 6 of 2011 – provide for the Public Transport Operations Grant (PTOG) and PT Infrastructure and Systems Grant (PTIS).
13 7. Institutional arrangements • Section 11 of the NLTA provides for new functions of the spheres of government. • Municipalities are now responsible for planning, contracting for PT services and implementation. • Provinces remain responsible for existing bus contracts, but the function can be assigned to municipalities by the Minister. • The operating licensing function stays with provinces but can be assigned to municipalities by the Minister.
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7. Institutional arrangements
cont.
• The National sphere of government is responsible for
(s.11(1)(a)):
• National transport policy & strategy;
• Co-ordination between provinces;
• Assigning functions to other spheres;
• Interprovincial and tourist transport;
• The OL function (can be assigned to municipalities, but stays with
provinces until assigned); and
• Acting as contracting authority for subsidised service contracts,
interim contracts, current tendered contracts and negotiated
contracts concluded i.t.o the NLTTA (reason is so that the national
sphere can assign the existing contracts to municipalities).15
7. Institutional arrangements
cont.
• The provincial sphere is responsible for (s.11(1)(b)):
Provincial policy and strategy within the framework of national
policy and strategy;
Capacitating municipalities;
Implementing the provincial Integrated Development Strategy &
Public Transport (PT) Strategy with due attention to rural areas
and less capacitated municipalities, either by direct intervention or
assistance;
The provinces must continue to perform the contracting and
operating licence (OL) functions unless the Minister assigns those
functions to a municipality; and
The provinces must continue to manage the contracts they
concluded under the NLTTA unless the Minister assigns them to a
municipality.16
7. Institutional arrangements
cont.
Municipalities are responsible for (s.11(1)(c)):
Developing land transport policy & strategy for their areas;
In their capacity as planning authorities preparing, implementing
and monitoring transport plans for their areas (ITPs);
Financial planning for land transport in their areas;
Managing the movement of persons and goods in their areas;
Planning, implementing and managing of modally integrated PT
networks and travel corridors within the municipal area and
liaising with neighbouring municipalities;
Service level planning for passenger rail in consultation with
PRASA;
Integrated ticketing systems; and
Determining fare structures and fare levels for gross contracts
Contracting for PT services.17
7. Institutional arrangements
cont.
• The National Public Transport Regulator (NPTR):
• Will deal with interprovincial transport – no more
concurrences;
• Will deal with tourist services (accreditation);
• Must monitor and oversee PT in the country; and
• Will set national standards & procedures.18
7. Institutional arrangements
cont.
• Provincial regulatory entities (PREs):
• Specialised unit in the provincial department;
• Members can be sourced from outside the prov.
Department;
• Will deal with OL applications for intra-provincial
transport services; and
• Applications referred to planning authorities for
comments (ITP will dictate).19 7. Institutional arrangements cont. • Municipalities to which the OL function has been assigned by the Minister (MREs) (section 17 -18): • Probably confined to the “13 cities”; • Specialised unit in administration of municipality; • Functions will only be assigned (in terms of the Constitution and Systems Act) if municipality has the capacity (FFC must be involved); • Will deal with OLs for transport in their jurisdiction; and • May invite services on routes and publish that it will no longer consider applications on saturated routes (s.18(3)).
20 7. Institutional arrangements cont. • Intermodal Planning Committees • IPCs must be established by municipalities establishing IPTNs or with significant passenger rail services (s.15); • Consists of prescribed technical officials and representatives of rail and other PT modes; • Function is to co-ordinate and integrate PT; and • IPCs responsible for a service level agreement with PRASA.
21 7. Institutional arrangements cont. • Land Transport Advisory Boards • Any planning authority may establish a Land Transport Advisory Board to advise it (section 16); • The LTAB consists of representatives from government and the private sector; and • The Minister may make regulations on membership.
22 7. Institutional arrangements cont. • Intergovernmental relations • A province may agree with one or more municipalities for joint exercise of functions or can establish a provincial entity (s.12(1)); • Provinces may also undertake municipal functions in agreement with the municipality i.t.o that section; and • Adjacent municipalities may agree on joint exercise of functions.
23 8. Transport planning • The new Act provides for principles for transport planning and its integration with land use planning. • The following transport plans are required by the Act: – A National LT Strategic Framework by the Minister; – Provincial LT frameworks by the MECs; and – Integrated transport plans (ITPs) to be prepared by municipalities in terms of the Minimum Requirements – CITP, DITP, LITP.
24 8. Transport planning in relation to OLs • OL applications more strongly based on plans in the new Act. • The integrated transport plan (ITP) of the PA (municipality) will dictate whether new OLs will be issued. • NB: this only applies to on-plan services – not to tourist and charter services and interprovincial services. • If ITP shows a surplus of services on a route: impose a moratorium on route or give operator alternative route(s) if possible – first apply law enforcement to remove illegal operators.
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9. Funding
• Section 27 provides for the creation of a Municipal Land
Transport Fund for each municipality that is establishing
an IPTN.
• The Minister, a province or the municipality itself may
deposit money in the fund.
• Public transport user charges collected under section 28
will also go into the fund.
• The fund is dedicated for land transport purposes.
• Municipalities that have established LT funds will be
empowered to raise user charges i.t.o section 28.26
10. Contracting for public
transport services
• Appropriate cities must do IPTNs – may or may not
include bus rapid transit (BRT) – large capacity buses on
priority lanes along corridors.
• Negotiations for the contracts must to include existing taxi
and bus operators.
• Contracts can be subsidised or commercial.
• First round of contracts can be negotiated (up to 12 years)
– thereafter services put out to tender.
• Negotiated contracts can be done to form IPTNs, promote
small business or PDIs, or to restructure a parastatal or
municipal operator.27 10. Contracting for PT services cont. • Other contracts will be for a maximum of 7 years. • Where a contract is awarded, the operator is automatically entitled to OLs for the relevant vehicles based on the contract. • Existing contracts: either operator agrees to be part of IPTN or offered alternative services or compensation.
28 11. Conversion of permits to OLs cont. • All existing permits must be converted to OLs within 7 years – applies to all modes. • The OL must be route based in case of minibus taxi-type and scheduled services and radius permits must be converted to route-based OLs: based on actual operations in last 180 days. • Permits not converted after 7 years will lapse with no compensation. • Indefinite permits must be converted to OLs that are valid for a maximum of 7 years.
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12. Exemptions
The following are exempted from applying for operating
licences:
• A courtesy service with 1 or 2 sedans – but must register with
NPTR after a date to be determined;
• A lift club;
• Farmers or municipalities conveying own workers;
• Ambulances;
• Own employees conveyed in the course of their duties; and
• Conveyance of learners, teachers etc. for purposes of sport
or recreation by means of a vehicle of which the school or
institution of higher learning is the owner or has contracted it
to an operator.30
13. Application for an
OL
• The planning authority must, based on its ITP:
• Indicate if there is a need for the service;
• Submit the response to the NPTR or PRE;
• Or direct the NPTR or PRE to refuse the application;
• NPTR or PRE may condone late submission of a
response that it has requested from a planning
authority; and
• NPTR or PRE can dispose of the application without
any input from planning authorities where they failed to
respond.31
14. Renewal, amendment or
transfer
• The RE may not refuse renewal unless:
• The applicant is no longer a fit and proper person to provide PT
because he/she has been convicted of an offence listed in reg. 18
or in the opinion of the RE has not carried out the conditions of the
OL/permit faithfully (see also section 79(2));
• The holder has failed to provide proof of registration and licensing
or roadworthiness of the vehicle;
• The services have not been provided for the previous 180 days
unless the holder has provided acceptable reasons;
• The planning authority has directed the RE to refuse the application
i.t.o section 55(3); and
• There is any other reason contemplated in the Act.32 14. Renewal, amendment or transfer cont. • Transfer: • Transfer as a result of sale of business, inheritance etc.: must have consent of holder and new operator must be acceptable. • If holder of OL or permit dies or sells business: must apply to transfer the OL to the heir or new operator. • Amendment: • Can apply for amendment of route(s) etc.
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15. Metered taxi services
• Metered taxis must have a meter that complies with
standards set by the SABS or Minister – section 66.
• The driver may agree on a fare that differs from the
metered fare, but must keep the meter running for info
purposes.
• An OL for a metered taxi services may specify an area to
pick up passengers.
• The taxi may leave the area if it returns empty or with the
same passengers.
• The operator may pick up passengers outside of the area
only if the fare is pre-booked and the passengers will
return to the area.34
16. Electronic-hailing
services
• The Amendment Bill provides for the new section to
regulate e-hailing services.
• The OL for a vehicle may allow it to provide other types of
services.
• The Minister may make regulations for e-hailing services.
• The regulations must include special markings for e-
hailing services.
• The operator may pick up passengers outside of the area
only if the fare is pre-booked and the passengers will
return to the area.
• Operators can operate with meter or an app, or both.35 17. Charter services • Includes “car-plus-driver” - see section 67. • Consists of a pre-booked party where the charge is arranged beforehand and passengers are not charged individual fares (“organised parties”). • The passengers must decide the destination and must be conveyed to a common destination. • Authority to provide charter services may be combined with other services, e.g. a minibus-taxi type service or bus service plus charter services.
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18. Scholars, students,
teachers and lecturers
• Section 72 and Reg. 42 deal with this and includes the
following:
• A contract must be submitted or a letter from the institution;
• Certified copies of PrDPs of drivers must be submitted;
• As from a date to be published by the Minister, drivers must
undergo certain tests and have certain qualifications;
• Vehicles will have to be marked and carry first-aid kits once
regulations are made on these issues; and
• Regulatory entities must keep a separate database of
scholar transport operators and vehicles.37 19. Courtesy services • Section 53(1)(a) and regulation 29 deal with courtesy services. • If the hotel/guesthouse operates more than 3 motor-cars (sedans) or a minibus, midibus or bus, it must apply for an OL. • If it operates 1 or 2 sedans they are exempt, but will have to register with the NPTR as from a date to be published.
38 20. Tourist transport services • Initiative by DEAT, DoT and tourist transport industry in 2006 – 2007. • No one will be able to operate tourist transport services unless accredited by the NPTR – sections 80 – 84 and Reg. 30 – 38. • Recommendations from tourist authority is required (if there is one). • Insurance: passenger liability insurance not a legal requirement because of 2008 amendment to RAF Act: however in certain cases operators will require it, e.g. if RAF is “unable to pay”.
39 21. Other OL issues • Cession, hiring out etc. of an OL is prohibited, except for a transfer to another person. • OLs not in use for more than 180 days may be cancelled – operator may make representations. • OLs may be withdrawn for “misconduct” e.g. failure to comply with conditions – operator may make. • Insurance: passenger liability insurance not a legal requirement because of 2008 amendment to RAF Act: however in certain cases operators will require it, e.g. if RAF is “unable to pay”.
40 22. Registration • Registration of associations and operators was a transitional measure for minibus taxis. • The new Act does not deal with registration. • The RAS and OLAS systems will be combined and managed by regulatory entities. • Provinces have the power to make laws on registration if they wish.
41 23. Cross-border road transport • The Cross-Border Road Transport Act 4 of 1998 applies. • Permits must be obtained from the Cross-Border Road Transport Agency. • Permits are issued in terms of international agreements. • Where passengers intend to cross a border it is also cross-border transport: e.g. if dropped at a border and walk across. • An operator needs an OL as well as a cross-border permit if passengers are picked up and set down in the RSA.
42 24. Law enforcement • Def. of “authorised officer”: the following may enforce the Act: • Inspectors appointed under section 86; • SAPS; • Provincial, municipal or RTMC traffic officers; and • Cross-Border inspectors. • Section 85 provides for agreements between land transport law enforcement agencies. • Provinces and municipalities that have the OL function (MREs) may appoint inspectors for PT (section 86).
43 25. Appeals • All appeals will now be to the national Transport Appeal Tribunal (TAT). • Provincial appeal bodies no longer provided for. • The TAT Act 39 of 1998 is amended to provide for the changes.
44 • The End – Thank you
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