The Economic Regulation of Transport Act, 2024 (Act No. 6 of 2024)Chapter 1 : Interpretation, Purpose and ApplicationPart B : Purpose and Application of Act4. Application of Act |
| (1) | Subject to any exemptions contemplated in subsections (7) to (9), this Act applies to any market, entity or facility in the transport sector that was, immediately before the effective date, subject to economic regulation by the Minister. |
| (2) | The Minister, in consultation with the Regulator, by notice in the Gazette, may declare that this Act applies to any market, or any entity or facility, irrespective whether privately or state owned, within the transport sector, if the Minister has determined that either of the following circumstances apply— |
| (a) | a single operator controls more than 70% of the market concerned; or |
| (b) | the preconditions for efficiency and cost-effectiveness do not exist in the market concerned. |
| (3) | The extent of regulation introduced must be proportionate to the competition problems in the market. |
| (4) | When making a determination in terms of subsection (2)(b), the Regulator must have found that— |
| (a) | at least one firm operating in the market has market power; or |
| (b) | a facility or resource in the market is an essential facility, after having received and considered— |
| (i) | an opinion from the Competition Commission— |
| (aa) | after conducting a market inquiry in terms of chapter 4A of the Competition Act; or |
| (bb) | on the basis of the Competition Tribunal finding that anti-competitive abuses have occurred within the relevant market; or |
| (ii) | a report from the market inquiry, conducted by the Regulator in terms of section 43(2)(b). |
| (5) | Before the Minister may consider making a determination contemplated in subsection (2), the Regulator, in the prescribed manner and form— |
| (a) | must publish the relevant opinion or report contemplated in subsection (4) in the Gazette, within the prescribed period; |
| (b) | must publish, in the Gazette, a notice that such a determination is being considered, and invite public submissions in response to the notice; and |
| (c) | may conduct public hearings on the matter in appropriate circumstances. |
| (6) | A determination made by the Minister, as contemplated in subsection (2), remains in force until withdrawn by a further determination by the Minister, but any such further determination may be made only after complying again with the requirements of subsections (4) and (5). |
| (7) | The Minister in consultation with the Regulator, by notice in the Gazette, may grant an exemption from the application of this Act to any specific market, entity, facility or service that is otherwise subject to the application of this Act, if the Minister is satisfied that— |
| (a) | the market, entity, facility or service does not have a material effect on competitive conditions within the transport sector; or |
| (b) | none of the economic conditions contemplated in subsection (4) apply with respect to that market, entity, facility or service. |
| (8) | The Minister may grant an exemption in terms of subsection (7) either— |
| (a) | in conjunction with a determination in terms of subsection (2) that would otherwise affect the entity being exempted; or |
| (b) | at any other time, after complying with the requirements of subsections (4) and (5). |
| (9) | An exemption granted by the Minister in terms of subsection (7), remains in force until withdrawn by a notice by the Minister published in the Gazette, but any such notice may be made only after complying again with the requirements of subsections (4) and (5). |
| (10) | The Minister may make regulations regarding— |
| (a) | the timing, manner and form of notices and periods of public submissions contemplated in subsection (5)(b); |
| (b) | procedures for requesting and considering requests for exemptions; and |
| (c) | other matters required for the proper application of this section. |
| (11) | The Minister may, in consultation with the Regulator, from time-to-time, by notice in the Gazette, declare that any other regulator, in no particular order, are consolidated into the Regulator— |
| (a) | including the following regulators, but not limited to: |
| (i) | Cross-Border Road Transport Agency; |
| (ii) | National Public Transport Regulator; |
| (iii) | Air Service Licensing Council; |
| (iv) | International Air Services Council; |
| (v) | any other regulator; and |
| (b) | if the Minister has determined that one or more of the regulators referred to in paragraph (a) must be incorporated, the Department must produce a report from conducting a review of their performance and capabilities, including the initiation of the legislative reform required to facilitate the incorporation of these regulators within three years from the effective date and from time-to time, thereafter. |
| (12) | Before the Minister may consider making a determination contemplated in subsection (11), the Department, in the prescribed manner and form— |
| (a) | must publish the relevant report contemplated in subsection (11)(b) in the Gazette, within the prescribed period; |
| (b) | must publish, in the Gazette, a notice that such a determination is being considered, and invite public submissions in response to the notice; and |
| (c) | may conduct public hearings on the matter in appropriate circumstances. |