‘Exporters must speak up on contentious tariff hikes’

The port landlord, Transnet National Ports Authority (TNPA), could be on the fringe of disobeying the Ports Regulator’s decision on individual export tariff increases. These contentious tariff increases applied for by the TNPA are not play-play amounts. Some of the bigger export products from SA, for example, that are affected include the liquid bulk molasses tariff, which leapt up by an enormous 864.60%; breakbulk logs by 644.8%; and dry bulk timber woodchips by 612.37%. Even at the lower end of the scale, the big SA export of dry bulk chrome ore saw its tariff walloped up by 117.2%. And if it gets to go ahead with implementing some of these increases from April 1, certain big export businesses could get blown clean out of the water, according to industry commentators. The issue started when the TNPA submitted its requested tariff increases to the Ports Regulator (PR) for approval. It wanted a general tariff increase of 11.91% – but listed a large number of claimed individual import and export tariff increases, some of which far exceeded that average amount. But the PR didn’t agree with the TNPA’s calculations. It first of all cut the claimed 11.91% general tariff increase to 4.49%, and did not accept the authority’s claim for separate individual tariffs. However, the PR’s answer to the TNPA submission was one of those classic pieces of legalistic jargon, which left importers and exporters somewhat mystified. This at a time of the year when they are in the process of revising their budgets, and the tariffs play a crucial role in this regard. And, until the individual TNPA tariffs have been resolved, no importer or exporter can prepare any meaningful budget. The PR’s published determination read: “In the absence of a clearly articulated model that sets out the application of all factors in specific tariff determinations, the Regulator would have to make determinations on all tariffs that differ from a generalised tariff increase on a case-by-case basis. In addition, no information allowing assessment of individual tariffs was given for some of the requested increases or decreases against the overall requested tariff. “The Regulator decision is therefore restricted to approving an overall increase with general application across all tariffs. “The TNPA has indicated that it has commenced a tariff review project that will address these concerns. The review methodology considers, among other factors, the facilities used, the commodity value and the throughput, although the specifics have not as yet been made available to the Regulator. The Regulator acknowledges that a tariff review project is under way, but has not been provided with the details of what tariffs are to be amended, in what manner, the factors to be taken into consideration in such a review as well as their application to specific tariffs and the time frames of such processes.” This could have two possible interpretations, according to maritime legal specialist, Andrew Robinson, director of Deneys Reitz. The first is that the PR did not directly approve these individual tariffs, so the TNPA cannot implement the claimed increases. Secondly, the PR has only approved a general tariff increase of 4.49% – so any amounts exceeding this figure cannot be implemented. This translation was also confirmed to FTW by the PR. But the ball’s now very much in the hands of the TNPA. It appears that the ports authority currently has the PR’s findings before its legal team, and everyone – including the PR – is waiting for the TNPA’s answer to the issue. “We’ve written to the TNPA’s lawyers who are looking at this,” said Robinson. “We are waiting for their reply.” But importers and exporters who are unhappy with the claimed TNPA tariff increases should not just sit back waiting to see what the authority does on April 1, according to another maritime lawyer. “My view”, he told FTW, “is that exporters must file complaints individually against the tariff once it has come into effect. These complaints should be filed in terms of section 47 of the National Ports Act (NPA). “I don’t believe that either the Regulator or the TNPA is going to do anything further in respect of these anomalies in tariffs, and exporters therefore have little choice but to file complaints. “It should be noted that in terms of the directives issued pursuant to the Act (NPA), complaints must be lodged within three months of the incident or conduct complained of. Therefore, exporters should not let this sit but should get their complaint proceedings under way as soon as possible. I think that it is arguable that the three-month period starts to run on April 1, 2011.”