It all starts with Criminal, Civil and Vicarious Liability - and The Constitution - which means, under Section 34 - Access to Courts, that anyone can take anything to court. On this point, here's the first mine.

Let fleet owners take serious note that the Road Accident Fund (RAF) has been plundered and that lawyers are now chasing accidents to sue names following depletion of RAF income. The perceived financial capacity of both Government and large companies makes both likely lawsuit targets.

Transport legal boffin, Alta Swanepoel, points out that Vicarious Liability is a well-established principle in law which makes an employer responsible for the actions of employees. In other words, an employer can be sued for accidents caused by drivers. When I look around at the sloppy discipline that exists in many transport operations, there is massive scope for potentially destructive legal actions that can cripple transport businesses and ancillary operators.

Stay abreast of changes
Roger Overton, a maintenance specialist of Golden Arrow Bus Service, points out the necessity of scanning Government Gazettes for information relevant to one's core business activity. According to him, there is a danger that SABS will accept UN ECE regulations without consulting all stakeholders in the road transport industry. That's all we need right now - a set of inapplicable, complex First World rules that have no bearing on our Third World society.

It is obvious then that truck owners and bodies such as the Road Freight Association (RFA) must become more directly involved in the drafting of legislation. If they don't, we will end up with impossible situations copied from irrelevant overseas sources that just do not fit our operating environment. On this point, one must ask the question: Is the RFA up to this? On this, we have a problem.

Transport consultant Max Braun stated at the Transport Legislation Workshop that the RFA only has around 700 members and is not representative of the road transport industry - and he is right!

His observation is endorsed by Clifford Blackburn, MD of International Delivery Company, a medium sized haulier, who was quoted in a June 29th Business Day survey as saying: "Despite the existence of certain associations to look after transporters' interests, there is no solidarity in a trucking industry that badly needs it."

In an article carried in this edition of FleetWatch on the Irish Road Haulage Association, CEO David Walsh is quoted as saying: "We are the voice of the Irish road haulage industry. As a trade organisation, we are here to represent our members and to make sure legislation is fair - and to give hauliers a voice into any changes."

And government - right up to the prime minister (the Irish Taoiseach) listens to this association. Why? Simply because they are truly representative. Note this. Of the 2 000 IRHA members, about 1 500 of these operate with less than three vehicles. The RFA does not have such broad-based representation in South Africa. It is, in fact, perceived as representing the interests of the larger companies rather than the trucking industry as a whole. This leaves a whole lot of small to medium sized operators on their own out there.

So while we see it as essential that all truck owners become more involved in the drafting of legislation, the problem exists on where they go to unite their voices under a single banner of representation. A shake up of structures, associations - or whatever - is urgently needed to unite the voice of the South Africa transporters for, in its present guise, the RFA is, unfortunately, not the body.
That such representation is urgent is given credence via a warning from Roger Overton who comments that committees he has been associated with dealing with various aspects of road transport have not met for a long time and information at hand indicates that these committees have in fact been disbanded. He adds: "Ominous signs for all ahead, I fear, as numerous issues are still on many agendas."

Apparently legislation is in the pipeline for goods vehicles with a GVM of up to 3 500kg to be restricted to a maximum height of 2,3m measured from ground level. While I welcome this new regulation, I shudder to think of bakkie sales people who will continue to sell over-sized van bodies out of ignorance and expose their dealerships to massive liability in the event of a roll-over accident. We can all learn from the Firestone-Ford debacle.

Vehicle licensing is a mess
Let's look at another minefield. We now have nine provinces where local licensing staff have different interpretations of how registration and licensing must be executed. The latter issue, in combination with the complex spider's web of registration and licensing legislation is, in the words of Alta Swanepoel: "Causing absolute confusion in the industry." To heighten the chaos, provinces now publish their own fees for licensing in Provincial Government Gazettes and raise these annually. 

A large vehicle leasing and rental company is understood to incur R1-million annually in courier fees that are applied for the sole purpose of getting vehicle licensing and registration documents around the country to satisfy the demands of local licensing offices! This is not the way to reduce cost structures and keep people employed in competitive times.

Transport users must also take note of Regulation 18:
Subject to the provisions of regulations 19 and 20, every motor vehicle in the Republic shall, whether or not it is operated on a public road, be licensed by the owner of such motor vehicle, in accordance with the provisions of this Part, with the appropriate registering authority.

The implication is that all motor vehicles must be registered and licensed even if they are never used on a public road. This applies to the following, by way of example:

• A bakkie that never leaves the precinct of a mine.

• A golf cart - it is classed as a motor vehicle.

• A goped is a motor cycle and must be licensed and registered.

I can think of a number of operations that could be in for a big surprise when visited by local licensing dignitaries who demand license fees retroactively for vehicles that have never been licensed while operating on private property.

Swanepoel comments that duplication of motor vehicles is also a growing problem. "An individual who went to change his driving license at a licensing authority discovered that there were four motor vehicles registered in his name - even though he did not actually have one vehicle on his name!"

This is impacting on the NATIS database in terms of the accuracy of information on vehicle registrations. At a conservative guess, it could easily be 25% inaccurate. As an aside, here's two tips to get you safely through this minefield: 

When a motor vehicle is licensed in your name but does not belong to you.
Make an affidavit outlining the situation and request the registering authority to remove the vehicle from your name.

When another motor vehicle is driving around with your vehicle's number plate.
The easiest way to remove the problem is to change your vehicle's license number - costs involved will not be refunded

Extending the legal minefield
Keith McMurray of DG Consultants also rocked a few comfort zones at the Transport Legislation Workshop. If you think the term 'dangerous goods' does not apply to your products - whether a manufacturer or transporter - think again!

As was pointed out in the last edition of FleetWatch, current SA regulations for 'hazardous substances' - Act 15/73 - listed only 700 substances. Under the new regulations, as many as 2 500 substances are listed under the new term 'dangerous goods'. This even includes shoe polish!

The new provisions relating to dangerous goods came into force on 1 August 2001 and cover responsibilities of the consignor for loading, the operator for transporting and the consignee for unloading of dangerous goods and substances. Each of these operations is subject to operational agreements between relevant parties and qualified persons trained to perform the work must carry out tasks pertaining to the operations.

SABS 0231 in clause 5.1.2 requires that an owner/operator must ensure that adequate insurance shall cover civil liability, recovery costs and rehabilitation of the environment. Check the goods you consign, carry or receive. You can be at risk where a 'dangerous goods' spill wrecks your company.

"Dangerous Goods legislation exposes consignor, transport operator and consignee to public liability and there is absolutely no interest from insurers in promoting awareness of the situation. It is in the insurers' interests to try limit claims and be proactive" Keith McMurray

Points to ponder
Some additional pointers to chaos were given by Max Braun, specialist consultant in transport management, distribution and logistics, when commenting on the road transport legislative scenario:

• Where are all the effective transport managers? They have disappeared and been replaced by inadequate maintenance practices that seem to be solely designed to ensure vehicles do not comply to legislation.

• The Department of Transport (DoT) failed with the implementation of the Road Transport Quality System (RTQS) that followed the permit system due to a lack of both resources and communications. The need for training and re-training - only an estimated 12% of enforcement officers really understand the Road Traffic Act - adds to the chaos around this topic.

• It appears that South African law enforcement agencies are suffering from 'bureaucratic blues'. There is a lack of will to enforce. In addition, traffic enforcement salaries are a disgrace which has led to wide-scale corruption. This, in turn, has induced enforcement officers to focus on soft targets.

• The problem with lousy law enforcement is that non-compliance is not expensive or inconvenient. At the same time, South African transport operators are adopting selective morality. It is OK to cheat the government through overloading and other malpractices while criticising authorities for high levels of crime and deteriorating road conditions. Shippers are part of the overloading problem. They should be made accountable by being forced to record mass on all weigh-bills. Shippers in the USA are exposed to fines up to 20 000 US$ for overloading practices.

So what does South African road transport need?

• Top private sector management must be convinced they should support organised transport.

• If we can't enforce something, don't introduce it.

• Organised road transport must engage government at all levels.

• A consistent application of the law - a level playing field.

• Create a climate for better understanding and motivate a will to succeed.

• The industry must take responsibility for it's 'Codes of Practice' and adopt 'world class industry best practice'. This way, we obtain the benefits flowing from globalisation, the logistics revolution and Just-In-Time (JIT)".

In conclusion, I urge you to visit these pointers, add to them and draw your own conclusions.

1. Can our RFA lead us out of this quagmire? I think not - especially in currently constituted non-representative format as an exclusive country club.

2. I repeat that ignorance of the law is no basis on which to run a business - especially one connected in any way to road transport where civil and Vicarious Liability suites can take you down.

3. If you are a large organisation, appoint a specialist in vehicle licensing matters and train that person to handle the complex web of licensing legislation.

4. Do not give insurance companies an escape route out the back door due to undisciplined transport practices. Remember that insurance profitability is founded on what the large print giveth, the small print taketh away!

5. Scan the Government Gazettes to keep up to date with change.

6. Audit your business for dangerous substances and take charge of the situation. Don't let an overloaded bakkie with dangerous goods capsize on a freeway and implicate you in an unmanageable disaster.

7. Don't let irrelevant legislation be foisted on us because you do not participate in forums on transport issues. Make your voice heard.

8. Raise the level of road transport representation in your organisation.

FleetWatch has introduced a new slogan around its drive to keep things legal. It is: 
Proud to be Legal. Get to know the law. It's in your best interest to do so.