Port Regulator moves into action

Those in the freight industry with what they feel are justifiable complaints against the port authorities are going to have to think fast if they are to be laid before the newly-established port regulator, according to FTW’s maritime legal advisers. This follows the August 6 gazetting by the department of transport of the ‘Ports Regulator – Regulatory Principles and Directives’ – in terms of which the port regulator will operate. In these, the port regulator has the guidelines for the performance of its functions – and has effectively been able to operate from that deadline date. If any of our readers have a complaint against the port authorities – in the form of the Transnet National Ports Authority (TNPA) – they have to lodge it within three months of “the incident, conduct or omission”. In the case of any complaint that arose after November 26, 2006, but prior to the August 6, 2009 publication of these directives, it must be lodged within three months of that August date. This requires urgent action on behalf of the complainants. The three month period can be extended by the regulator on “good cause shown”, according to Tony Norton, maritime specialist with lawyers, Garlicke & Bousfield, and chairman of the National Port Users’ Forum (NPUF) – provided the complainant applies for such condonation in writing. “Complainants only have until November 5 to lodge any complaint, the act or omission in respect of which arose between November 26, 2006 and August 6, 2009,” he told FTW. “But complainants are urged to avoid having to rely on that provision as there is currently no certainty as to what will constitute good cause.” He also highlighted the basis on which a complaint can be brought. In terms of directive 2(1), he told FTW, any person whose rights or interests are adversely affected by any action of, or failure to act by, the TNPA may lodge a complaint with the port regulator on a number of grounds. These are where access to ports and port facilities are not provided in a non-discriminatory, fair and transparent manner; and where small- and mediumsized enterprises owned by historically-disadvantaged groups do not have an equitable opportunity to participate in the operation of facilities in the ports environment. They also include where Transnet is treated more favourably, and it derives an unfair advantage over other transport companies; and the TNPA has failed to carry out, has unfairly carried out, or has misapplied itself to, any of its functions as set out in section 11 of the Act. He also pointed to Directive 8, in terms of which a port user or licensed operator whose rights are adversely affected by a decision of the TNPA can appeal to the port regulator against that decision within 15 days of receiving that decision – and within 10 days of requesting written confirmation of the decision within 15 days of becoming aware of it. “Also,” Norton added, “in terms of Directive 21 any provider of port services must by February 5, 2010 – or within six months of the commencement of the service, whichever is the later – submit to the port regulator a detailed and comprehensive list of the prices charged by it for the provision of port services at any port, together with the terms and conditions attaching to such prices.”