Nkandla sets a welcome precedent for Ports Regulator's recommendations

The recent Constitutional
Court ruling on Jacob Zuma
and Nkandla is good news
for the shipping industry as
it sets a precedent for the
enforcement of orders by
regulators.
According to Andrew Pike,
a partner with Bowman
Gilfillan, one of industry’s
major concerns to date with
the Ports Regulator of South
Africa (PRSA) – which
is tasked with regulating
Transnet National Port
Authority (TNPA) – has
been that its orders are not
enforceable.
“One would expect TNPA
to abide by and implement
any ruling or order issued
by the Regulator, but there
has been no way of enforcing
it.” This
meant that if
they were to
renege one
would have
to go to court
to make any
ruling against
the TNPA
enforceable, he
added.
In recent
years the
number of
complaints brought to the
PRSA has been declining
– not only because of the
lack of capacity to timeously
address complaints and
appeals but also due to
the lack of enforcement of
decisions,
according to
Pike.
“There
are several
challenges that
exist within
the port
regulatory
environment –
including that
the Ports Act
determined
that TNPA
had to corporatise itself when
the act came into existence,
which never happened. So
you now have a regulator in a
non-compliant environment
and one is trying to interpret
an act that in some instances
does not make sense,” he said.
At the same time, said
Pike, there were also
questions around the extent
of regulation. “The act
clearly states that the PRSA
regulates all service providers
in the port. If one takes into
account the definition of port
services then it is apparent
that the regulator should be
extending its reach across the
port to terminal operators
and not only be regulating
TNPA.”
But, said Pike, taking
into account the capacity
constraints due to a lack of
resources it was unlikely that
the regulator in its current
format could take on any
more responsibility.
He said the Constitutional
Court Nkandla judgment set
a precedent that government
institutions had to
implement regulatory order.
“These orders are arguably
binding in light of this
judgment,” said Pike. “The
action of the Regulator is no
different from the remedial
action of the public protector.
And this hearing clearly sets
out to say that unless you are
doing what – in this case the
public protector says – you
are breaking the law.”
INSERT & CAPTION
In recent years the
number of complaints
brought to the PRSA
has been declining.
– Andrew Pike