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Headlines

December 2001

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Legislation Watch

THE COPS are  WRONG ...again!

The October issue of Fleetwatch saw the cops wrong again in issuing fines for not displaying 80kph signs on vehicles...now for not having 'correct' licence papers.

Another incident where the cops are once again wrong in issuing fines has been brought to the attention of FleetWatch. In this case, it seems problems are being experienced in certain areas where traffic officers - even at Provincial level - are issuing "tickets" to operators of leased vehicles which are not registered and licensed in the Province in which these vehicles are temporarily operating. Last time (see our October issue) it was cops wrongly issuing fines to operators for not displaying the 80kph warning signs on their vehicles. Jack Webster investigates and sets the record straight.

The saga started with a reader phoning FleetWatch for help on a problem where in one area, a fleet of short term leased vehicles were issued with fines totalling over R5 000. The threat was also issued to impound the vehicles if they were not registered and licensed with the local registering authority within 21 days.

It is a tragedy that the traffic officers who issue these summonses are not made to read the relevant legislation and obtain the full facts before issuing tickets. Apparently, the clients of several leasing companies have been experiencing similar problems and it is for their benefit and interest that reference is made here to the relevant legislation.

Firstly, Regulation 3 states:

Motor vehicle to be registered
3. Subject to the provisions of Regulations 4 and 5, every motor vehicle in the Republic shall, whether or not it is operated on a public road, be registered by the title holder thereof, in accordance with the provisions of this Part, with the appropriate registering authority.

The Title Holder is defined in paragraph (lxxviii) of Section 1 of the Act.
"Title Holder", in relation to a vehicle, means:
   (a) the person who has to give permission for the alienation of that vehicle in terms of a contractual agreement with the owner of such vehicle; or
   (b) the person who has the right to alienate that vehicle in terms of the common law, and who is registered as such in accordance with the regulations under Section 4.

Since the Title Holder determines who will be the Registered Owner of a vehicle, the definition of "Owner" is quoted from paragraph (x1v) of Section 1 of the Act.

"Owner", in relation to a vehicle, means:
   (a) the person who has the right to the use and enjoyment of a vehicle in terms of the common law or a contractual agreement with the title holder of such vehicle;
   (b) any person referred to in paragraph (a), for any period during which such person has failed to return that vehicle to the title holder in accordance with the contractual agreement referred to in paragraph (a).

Now reference is made to Regulation 267 which states -
   (1) The registering authority concerned shall register the owner of a motor vehicle contemplated in Regulation 265 as operator of that vehicle upon application for the licensing of the vehicle concerned.
   (2) The registering authority effects the registration of an owner as operator of a motor vehicle by licensing the motor vehicle in the manner prescribed in Regulation 25, but -
   (a) the motor vehicle licence, licence and roadworthy certificate disc and operator card, shall be issued on form LCO as shown in Schedule 2;
   (b) the owner shall, upon receipt of form LCO, destroy any previous operator cards held by him or her with respect to the motor vehicle concerned.
   (3) If the registering authority is required to submit the particulars of an operator to the chief executive officer as contemplated in Section 45(2) of the Act, such registering authority may, subject to the provisions of Regulation 269, issue the operator with a temporary operator card as contemplated in Section 45(3) of the Act on form LCTO as shown in Schedule 2, in the case where the operator is not already in possession of an operator card with respect to the motor vehicle concerned.
   (4) Upon receipt of the particulars of the operator as contemplated in Section 45(2) of the Act, the chief executive officer shall:
   (a) examine the record of the operator referred to in Section 50(3) of the Act;
   (b) determine whether his or her operator card is suspended.

   (5) If the record of the operator indicates that such operator does not comply with the provisions of the Act, the chief executive officer shall notify the operator in terms of Section 50(3)(d) of the Act.
   (6)(a) The registering authority shall, upon receipt of the notification contemplated in Section 45(4)(a) of the Act, issue him or her with an operator card on form LCO as shown in Schedule 2.
   (6)(b) The operator shall destroy any other previous operator card or temporary operator card issued in respect of the vehicle concerned upon receipt of the operator card.
   (6)(c) The counterfoil of the operator card shall be kept at the business address of the operator.
   (7) An operator card issued in respect of a motor vehicle shall be valid from the date of issue thereof, until the date on which the licence disc issued in respect of the motor vehicle concerned becomes null and void, as referred to in Regulation 22, but the motor vehicle may be operated on a public road for a period of 21 days after the said expiry date.

And the Operator is defined in paragraph (xliv) of Section 1 of the Act.

"Operator" means the person responsible for the use of a motor vehicle of any class contemplated in Chapter VI, and who has been registered as the operator of such vehicle.

Cancel the fines
Given all this, it is apt to point out the following so as to get to the bottom line of why the cops are wrong in this instance:

• In the problem cases being experienced, the leasing company enters into a short/medium term contract with a client but retains ownership;

• The vehicle is registered and licensed with the "appropriate registering authority" in whose area the leasing company's business is located.

• The leasing of the vehicle to a client has nothing to do with the registering and licensing of the vehicle.

• The title holder and registered owner does not change and the leasing company is still the registered owner and when licensing the vehicle, becomes the registered operator.

• The lease contract between the leasing company and his/her client is a private contractual agreement to operate the vehicle on behalf of the registered operator which is the leasing company.

• The leasing company assumes all the duties and responsibilities as set out in Section 49 of the Act.

• The client can operate the vehicle wherever his/her contract with the leasing company permits. But the registration and licensing of the vehicle is still the responsibility of the leasing company and not the client.

Our strong suggestion is that all fines, summonses and/or threats in this case be cancelled. For any further information, please contact FleetWatch.