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Rail Safety Regulatory Environment: a South African Experience

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Rail Safety Regulatory Environment: a South African Experience RAIL SAFETY REGULATORY ENVIRONMENT: A SOUTH AFRICAN EXPERIENCE *L Mashoko and R Shivambu *CSIR Built Environment, PO Box 395, Pretoria, Tel: 012 841 4986, E-mail:[email protected] Department of Transport, 159 Forum Building, Tel: 012 309 3000 E-mail: [email protected] ABSTRACT Post-1994, the railway environment in South Africa could best be described as monopolistic competition. The former South African Railways & Harbours, which later became Transnet Freight Rail, was and still is the only role player. Transnet was able develop regulations and standards to manage their operations. The new dispensation brought with it many changes; chief amongst which was the introduction of the transport agencies that function at arms-length to promote safety in and across all transport modes. The Railway Safety Regulator was established in 2002, has been in operation since 2005, promoting, and regulating safety in the railway environment. The purpose of this paper is to look at the key elements of the railway safety regulatory regime in South Africa and compare it to other local and international regulators. There a number of differences between the regulations of railway safety in South Africa when compared to other countries. However, it is important to consider South African conditions and environment before adopting some of the best practices. 1. INTRODUCTION AND BACKGROUND This paper highlights key issues pertaining to the railway safety regulatory environment in South Africa (SA). This paper compares the regulatory environment in SA to other countries in terms of roles and functions according to the different institutions that perform them. It should be noted that, the aim is not to adopt what other countries are currently doing but rather to learn from them and adapt practices that fit with our local conditions thereby improving our railway regulatory regime. The information used in this study was obtained from the literature review as well as strategic documents obtained from the Rail Safety Regulator (RSR). Some of the information was also obtained from railway operators in SA. 1.1 The Railway Industry in South Africa There are a number of role players in the SA rail industry that contribute to the regulation of railway safety in South Africa. Figure 1 below, provides an overview of the current role players and the governance structure. ISBN Number: 978-1-920017-63-7 242 Proceedings of the 34th Southern African Transport Conference (SATC 2015) Figure 1: Role Players in the Railway Industry in South Africa (Source: Huntley et al, 2013) 1.1.1. National Government In terms of the Constitution Act of 1996, the regulation of the railway sector is a function of the national government. The national government is responsible for policy formulation and in the case of railway safety regulation the RSR is responsible for policy implementation. The National Department of Transport is in the process of developing rail policy for SA. 1.1.2. The Railway Safety Regulator Prior to 2002, the rail industry in South Africa was self-regulating. This means that operators set their own standards, investigated their own incidents and were accountable to no one in particular for safety performance (Railway Safety Africa, 2011). The RSR came into effect in 2002 by virtue of the creation of the National Railway Safety Regulator Act, 2002 (Act 16, 2002) or NRSR Act. This came after the National Department of Transport had recognized the need for a safety regulator for the rail sector as the previously dominant operator, Spoornet, could no longer play a dual role (being both player and referee) in the changing railway landscape. In addition to this, the safety legislation at the time did not make enough provision for the regulation of railway safety. This was because the Occupational Health and Safety Act (Act 85, 1993) as well as Mine Health and Safety Act (Act 29, 1996) did not cover railway safety specifically. In essence the NRSR Act is permission based, meaning that the persons who are subject to its jurisdiction are not allowed to undertake activities, unless they obtain railway safety permits to this effect. The RSR is governed and controlled by a Board of Directors (Huntley et al, 2013). The role of the Board members is ensuring that the RSR executes its mandate as well as exercise oversight over the Regulator’s performance and functions. Governance of railway safety forms the foundation of the regulatory framework and the relationship among its partners. 243 1.1.3. Provincial and Local Government All nine provinces supported the National Railway Safety Regulator Amendment Bill in 2008. During that time the various provinces highlighted issues to do with security at railway stations, financial implications of the Bill and broadening the Bill so that the RSR could disclose instances where operators paid little or no attention to safety and the transportation of explosives (Parliamentary Monitoring Group, 2008). 1.1.4. Railway Operators There are a number of operators in the rail industry in South Africa. For the purposes of this paper an operator refers to any one of the following: • a railway network operator e.g. Transnet Rail Engineering; • train operator e.g. Passenger Rail Agency of South Africa (PRASA) or Transnet Freight Rail (TFR) • station operator • rolling stock manufacturer?? These operators are classified into Class A (large, high risk) and Class B (small, low risk). Since the current regulatory regime is permission based all these operators have to receive a safety permit before they can operate. These permits are renewed at intervals set out by the RSR subject to meeting the requirements of the permits (Huntley et al, 2013). 2. CURRENT STATE OF RAILWAY SAFETY IN SOUTH AFRICA The RSR monitors the safety performance of the railway industry in its “State of Railway Safety” annual report. The report is based on the analysis of occurrence and incidents data reported by railway operators to the RSR as prescribed by the National Railway Safety Regulator Act 16 of 2002. More than 4000 railway incidents are reported annually under the operational occurrences category. In 2012/2013, railway safety improved to 4262 operational occurrences resulting in 1787 injuries but relatively higher fatalities of 440 compared to that of 2011/2012. This information is shown in Figure 2. 6000 4769 5000 4181 4348 4262 4000 Injuries 3000 Fatalities 2000 Operational Occurences 2510 1906 1932 1534 1787 1000 434 502 457 440 0 412 2008/2009 2009/2010 2010/2011 2011/2012 2012/2013 Figure 2: Operational occurrences according to year. (Source: RSR’s Annual State of Safety Reports) 244 Figure 3 shows a comparison of railway fatality rates for South Africa to other countries including the 27 countries that make up the European Union (EU). The fatality rate for the 27 member states of the European Union is presented as EU-27. The source of data for estimating the fatality rates for the rest of the countries was derived from their respective national transport safety statistics published annually. While the definition of a fatality and train-km are comparable between countries, the reporting practice for trespassers (unauthorized access) and suicide fatalities may not always be comparable. S. Africa* 5.85 Australia 0.16 S.Korea 0.45 Canada 0.6 USA 0.63 EU-27 0.32 0 1 2 3 4 5 6 7 All persons per million train-km Figure 3: SA and International Comparison of Fatality Rates Figure 3 illustrates that South Africa performs poorly when considering railway fatalities as compared to other international countries that have a regulatory environment comparable to SA. SA has a fatality rate of 5.85 fatalities per million train-km as compared to 0.16 and 0.85 for Australia and USA respectively. 3. REGULATORY FRAMEWORK The primary set of legislation dealing with rail safety regulation is the National Railway Safety Regulator Act, 2002 (Act No. 16 of 2002). This Act has been amended twice, once in 2007 by the Transport Agencies General Laws Amendment Act, 2007 (Act No. 42 of 2007, and once in 2008, by the National Railway Safety Regulator Amendment Act, No. 69 of 2008. In essence the NRSR Act is permission based, meaning that the persons who are subject to its jurisdiction are not allowed to undertake activities, unless they obtain railway safety permits to this effect. The Act is reasonably modern in the sense that it was only published in 2002, with amendments as recent as 2008. However, it should be noted that it is clear that operators are primarily responsible for railway safety and the RSR’s is mainly responsible for regulatory oversight. The RSR Act, 2002 empowers the RSR with regulatory tools that ensures that the regulator is able to deliver on its mandate. These regulatory tools include: • Safety permits • Safety management system • Standards, regulations and guidelines. 245 These regulatory tools are described in brief in the next section. 3.1. Safety Management System (SMS) Railway operators in South Africa are required to develop and implement a railway SMS in order to comply with National Railway Safety Regulator Act, 2002. In order to manage safety in a more structured and formalised way and to be issued with an operator permit, operators are duly required to have a fully documented and implemented SMS. The content of SMS is directly proportional to the size and complexity of railway operations, which in turn determine the risks to be managed. 3.2. Railway Safety Permits The Act requires all railway operators to apply for a Safety Permit from the RSR, prior to engaging in any railway operation including the construction phase. This is a requirement for all operators involved with the operation of any railway within the Republic with a track gauge of 600 mm or more.
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