Ethiopia follows a different calendar than the rest of the world... it is currently 2001 in their country... so a license expired in 2007 is actually valid.

Alta Swanepoel, one of the country’s foremost experts on transport legislation who writes exclusively for FleetWatch on legislation matters pertaining to trucking issues, sketches out the position regarding the legality of foreign drivers and their documents. There are serious flaws that need to be ironed out. 

THE QUESTION of the legality of foreign drivers and their documentation has been asked many times over the last few years and never really answered satisfactorily. 

The insurance industry and various individual companies are continuously enquiring about the legality of documents from our neighboring states and where a driver was involved in an accident, the lack of clarity is a major concern to the industry. 

Traffic officers are also regularly enquiring on the issue as they have to evaluate all kinds of strange documents on a daily basis. 

To give an example, the Ethiopians follow a different calendar from that of the rest of the world and it is currently 2001 in their country. If an officer is faced with a document that expired in 2007, his first reaction would be that is not a valid licence. However due to the calendar issue, these licences from Ethiopia are actually valid. 

Officers also do not know what the licences of other countries look like and have a huge challenge next to the road to evaluate these licences. 

Foreign drivers driving SA trucks also seem to be a unique problem. Operators remain responsible for the drivers in terms of section 49 of the National Road Traffic Act, 1996 and must ensure the driver complies with all the requirements of the legislation, as the operators are also charged in terms of the AARTO system if the driver commits certain offences and infringements. 

The legislation is quite clear on the following issues:

South Africa accepts foreign driving licences under the following circumstances as a driving licence (not a PRDP) – Section 23 and regulation 110 of the National Road Traffic Act, 1996 and its regulations provide for this: 

• The licence must still be valid in the country of issue 

• The holder’s photograph and signature must be on the licence or attached to it

• The licence must be in an official language or a translation must be attached 

• An international driving permit serves as a translation and an interpretation of the licence (the original licence must accompany the International Driving Permit). 

• If a person obtains permanent residency or returns to SA with a foreign licence, he has one year to change the foreign licence for a SA licence, after which his foreign licence may not be used on the road anymore. 

SECTION 32 of the National Road Traffic Act, 1996 that regulates professional driving permits, states that documents serving a similar purpose to a professional driving permit in a prescribed territory may be used as a PRDP in SA. 

The Act allows the Minister to set conditions for such acceptance. Currently no such conditions have been set. The term “serving a similar purpose as a PRDP” must be evaluated further: 

A PRDP in SA currently requires the following:

A valid licence
A medical certificate not older than two months stating the person is medically fit 
A check on previous convictions
Certain age restrictions
A training certificate for a dangerous goods category PRDP

It is just logical that a document issued in a prescribed territory must therefore do the same to be acknowledged in SA. Prescribed territories are:

• the Kingdom of Lesotho,
• the Kingdom of Swaziland,
• the Republic of Angola,
• the Republic of Botswana,
• the Republic of Malawi,
• the Republic of Mozambique,
• the Republic of Namibia,
• the Republic of Zambia
• the Republic of Zimbabwe; and any other state or territory declared by the Minister by notice in the Gazette to be a prescribed territory – none declared yet; 

Protocol signed

South Africa signed a Protocol in 1994 on Transport matters with the SADC countries. This protocol requires that the content of the protocol has to be published in the Government Gazette of member countries to become law in that country. South Africa has not yet published the Protocol. 

However, the Insurance ombudsman has referred to this protocol in a newsletter in September 2008 to the insurance industry indicating that due to South Africa signing the protocol, Zimbabwean documentation must be accepted by insurance companies in South Africa. This extract from this newsletter is self explanatory: 

3. To recognise driving licences issued according to the agreed SADC codes and format by other member states, or an International Driving Permit as corresponding and equal to its own. For this purpose a licence issued in one member state shall be valid for the driving of a vehicle in respect of which it has been issued in any other member state. (Article 6.10) 

4. The mutual recognition of driver’s licences and permits issued by a member state “shall also apply to professional driving permits or other documentation issued for the same purpose.” 

It follows from the aforegoing that any driving licence, professional driving permit or similar documentation issued in any member SADC country is valid and in full force and effect in the territory of every other SADC member state. 

It has come to the attention of this office that certain members have rejected claims in terms of motor vehicle policies on the grounds that the driver was not in possession of a valid South African driver’s license, but was only in possession of a driver’s licence issued in another SADC country which is said to have no validity in South Africa. This perception is incorrect and valid driving licences or permits issued by a competent authority in a member SADC state should be recognised as corresponding to and being equal to a South African driver’s licence. 

The rejection of claims on the basis that such licences or permits are not valid in South Africa will not be upheld by this office. 

EB Martin
Ombudsman for short-term insurance,
19 Sept 2008

This interpretation has the following problems: 

• It overrides the provisions of section 32 of the NRTA

• The protocol still qualifies the recognition of documents issued for the same purpose – it is not clear if the ombudsman evaluated the Zimbabwean documents and determined if it was issued for the same purpose. 

• The recognition of the driving licences has not been an issue, but if a person only has a driving licence and no PrDP, he should not be allowed to drive in SA even if a document similar to a PRDP is not issued in his own country. 

• The requirements for previous convictions in South Africa cannot be checked, and as many of these drivers drive on a semi permanent basis in SA, they do not commit offences in their own country and the offences they commit in SA are not checked. 

• Some of the foreign documents do not require medical checks.

• Traceability of the driver – Many magistrates are reluctant to issue warrants of arrest for foreign drivers as it is seen as an exercise in futility. AARTO requires that the owner and operator must have the postal and physical address of the driver of the vehicle – if this is in Zimbabwe or Zambia it will be difficult to serve documents to such driver. 

• Foreign drivers cannot receive demerit points. 

• Work status of foreigners – which documents are required and when they may work here.

• It is difficult to check the validity of their documents as it is generally a cumbersome process and the response from some governments is very slow. 

• It is largely unclear which foreign documents serve the same purpose as a PrDP.

As a special prosecutor for overloading cases, I frequently encounter a company with overloading fines indicating that the driver is Mozambican or Zimbabwean and has disappeared and that they are not responsible for the fines encountered by such driver. This is not a defense in terms of the law, as operators can be prosecuted even if drivers are not present, but it does add a degree of difficulty to the matter. 

It will just be a matter of time before South African drivers may become uncomfortable with the situation and require equal treatment to the drivers of other countries driving in South Africa. 

It is my opinion that if this problem is not addressed properly; it will escalate in the months to come. South Africa has thrown its borders open to Zimbabweans looking for work in South Africa. The persons coming across the borders are generally prepared to work for less money then their South African counterparts, so it is going to affect AARTO’S effectiveness as well as our road safety standards. It also has implications for the Road Accident Fund as many of these drivers disappear after accidents and cannot be traced at all.

The suggestion is that the Minister uses the powers given to him in section 32 of the NRTA and lists the countries whose documents serve a similar purpose to the South African PrDP and adds conditions for those countries whose documents do not serve the same purpose. 

This will address the ambiguity and requirements can be added for those countries whose documents do not conform to the South African PrDP's. 

The matter was raised with the RTMC in 2007 and the Department of Transport earlier this year. They have not responded yet.