alta swanepoel. venues: 26 may 2015 – stellenbosch (spier) 28 may 2015 – durban (garden court...

CONSIGNOR / CONSIGNEE

LEGISLATION

Alta Swanepoel

VENUES: 26 May 2015 – Stellenbosch (Spier) 28 May 2015 – Durban (Garden Court Marine Parade) 9 June 2015 – Pretoria (CSIR)

Please contact our office or visit our website for a registration form if you want to attend the Workshop.

ALTA SWANEPOEL & ASSOCIATES CC1266 Starkey Avenue, Waverley, Pretoria, 0186P O Box 31956, Totiusdal, Pretoria, 0134Tel: 012 332 2186/9Fax: 086 672 0469e-mail: [email protected]: www.altaswanepoel.co.za

Annual Road Transport Legislation Workshop - 2015

mailto:[email protected]

http://www.altaswanepoel.co.za/

The Department of Transport developed a National

Overload control strategy in 2003. An essential element of this strategy is the control of consignors and consignees of goods transported on public roads.

The legislation enabling the control measures for consignors and consignees was already drafted in 2003 and was eventually promulgated as part of the National Road Traffic Amendment Act, 64 of 2008. The Act was implemented on 20 November 2010

Section 74A and 74B of the Act as well as section 75(zB), (zC) and (zD) allows the Minister of Transport to regulate consignors and consignees.

introduction

Sec 74A. Act or omission of manager, agent or employee of consignor and

consignee (1) Whenever any manager, agent or employee of a consignor or consignee, as the case may be, does or fails to do anything which, if the consignor or consignee had done or failed to do it, would have constituted an offence in terms of this Act, the consignor or consignee, as the case may be, shall be regarded to have committed the act or omission personally in the absence of evidence indicating—(a) that he or she did not connive at or permit such act or omission;(b) that he or she took all reasonable measures to prevent such act or

omission; and(c) that such act or omission did not fall within the scope of the authority

of or in the course of the employment of such manager, agent or employee, and be liable to be convicted and sentenced in respect thereof.

(2) In the circumstances contemplated in subsection (1) the conviction of the consignor or consignee shall not absolve the manager, agent or employee in question from liability or criminal prosecution.

Nrta, 93 of 1996

Sec 74B. Proof of certain facts (1) In any prosecution under this Act, a goods declaration

or any other document relating to the load of a vehicle and confiscated from such vehicle shall be proof of the matters stated in such document unless credible evidence to the contrary is adduced.

(2) A copy of or extract from any document referred to in subsection (1), and certified as a true copy or extract by the officer in whose custody the original document is, shall, unless credible evidence to the contrary is adduced, be admissible as evidence and be proof of the truth of all matters stated in such document without the requirement of having to produce the original document from or of which such extract or copy was

Nrta, 93 of 1996

(zB) the regulation of any person who offers goods for

transportation on a public road or accepts goods after transportation, in relation to the mass of such goods, the documentation relating to such goods, the agreements that have to be concluded for such transportation, insurance in respect of the transportation of such goods and any other matter relating to the offering of goods for transportation or the acceptance of transported goods;

(zC) the criteria in terms of which a person is classified as an habitual overloader, the offences to which such classification applies, the criteria for rehabilitation, if necessary and the sanctions for classification as an habitual overloader;

(zD) the equipment to be used for law enforcement purposes, the certification of such equipment and requirements in respect of records obtained from the equipment;

Section 75 - powers

Section 74A requires a consignor and

consignee to take all reasonable steps to avoid overloading a motor vehicle and in the event of a prosecution the consignor or consignee must be able to show what steps he has taken to avoid the overloading of vehicles.

Section 74B requires accurate documentation as it may be used as evidence in court cases

Effect of section 74a and b

Published on 31 October 2014 Regulation 330A to D – implementation

date 31 January 2015 Regulation 1 – new definition of a

consignor and a consignee – already implemented on 31 October 2014

Regulations made in terms of section 75 – assigns duties to consignors and consignees

22ND NRT REGULATION AMENDMENT

“consignee” in relation to goods transported or to

be transported by a vehicle means the person excluding a consignee of dangerous goods in terms of regulation 273, who is named or otherwise identified as the intended consignee of more than 500 000 kilograms of goods in a month in the goods declaration for the consignment and who actually receives such goods after they are transported by road;

22ND REGULATION AMENDMENT

“consignor” means a person excluding a consignor of

dangerous goods in terms of regulation 273, who is named or otherwise identified as the consignor of goods in the goods declaration relating to the transportation of more than 500 000 kilograms of goods in a month by road or engages an operator of a vehicle, either directly or indirectly or through an agent or other intermediary, to transport the goods by road or has possession of, or control over, the goods immediately before the goods are transported by road or loads a vehicle with the goods, for transport by road, at a place where goods are stored in bulk or temporarily held but excludes a driver of the vehicle, or any person responsible for the normal operation of the vehicle during loading;


Offering and acceptance of goods on overloaded vehicle

prohibitedReg 330A. (1) A consignor or consignee of goods shall not offer goods or accept goods if the vehicle in which it is transported is not loaded in terms of the provisions for the loading and transportation of goods as prescribed in this Act.(2) A consignor shall require from the operator of the vehicle in which the goods he or she offers for transport and in which the goods will be transported, a written submission as to the payload of such vehicle and the distribution of such load on a vehicle.(3) If a consignor is responsible for the loading of a vehicle of an operator, he or she shall take such steps as are necessary to ensure that the vehicle is loaded as contemplated in subregulation (1) and (2).(4) A consignor or consignee shall not conclude a contract with the operator to transport goods on a vehicle, if the vehicle is overloaded when such load is transported on such vehicle.


Consignor to have a method of determining massReg 330B (1) A consignor shall use a method of establishing the mass of a vehicle and any axle or axle unit of such vehicle that is accurate as to ensure that such vehicle axle or axles are not overloaded in terms of Part IV of Chapter VI.(2) A consignor shall keep a record of the mass of every load transported from his or her premises as contemplated in subregulation (1).(3) The record as contemplated in subregulation (2) shall be put at the disposal of any traffic officer or person appointed as contemplated in section 50 or authorised as contemplated in section 82 of the Act.


(4) The chief executive officer concerned may, in the exercise of his

or her powers under this section— (a) require any operator, subject to any lawful objection, to make

discovery of documents by way of affidavit or by answering interrogatories on oath and to produce such documents for inspection;

(b) require any operator to allow inspection of any records and documents required to be kept by the operator in terms of this Act;

(c) appoint a commission to take the evidence of any person in the Republic or in a prescribed territory or in a foreign state and to forward such evidence to him or her in the same manner as if the commission were a commissioner appointed by a court; and

(d) at any time require that an inquiry be instituted into the operational activities of an operator by a person appointed by him or her for that purpose and, if such operator is a company, also into those of any other company in a group of companies to which the operator belongs or of which the operator is the controlling company.

Section 50 of the NRTA

Inspections for ensuring that provisions of Act

are given effect to(1) The Minister may authorise any person to carry out any inspection which the Minister deems necessary in order to ensure that the provisions of this Act are being complied with.(2) If the Minister delegates the power conferred upon him or her by subsection (1) to the MEC concerned, that MEC may authorise any person to carry out the inspection concerned.(3) No person shall obstruct or hinder any person in the carrying out of any inspection contemplated in subsection (1).

Section 82 of the NRTA

Goods declaration to be carried on a motor vehicle Reg 330C. A person operating on a public road a motor vehicle which carries goods shall be in possession of a declaration containing the following information:(a) the licence number of each vehicle in the combination of vehicles;(b) the nature and quantity of goods transported;(c) the contact particulars of the operator or in the case of a combination of vehicles, of every operator in the combination of vehicles;(d) the particulars of the consignor and consignee of the load or in the case of loads collected at and delivered to more than one consignor and consignee, the particulars of every consignor or consignee;(e) the name, residential and postal address of every natural person or in the case of a juristic person, the responsible director or member, an agent, consignor, consignee or operator listed in the declaration;(f) the consignor and operator shall conclude a written agreement for the transportation of goods stating–

(i) the nature of the agreement;(ii) the loading instructions; and(iii) the responsibilities of the parties.

(g) schedule of insurance as contemplated in regulation 330D.


Consignor or Consignee to insure goods to be carried on a motor vehicle and the motor vehicle

Reg 330D A consignor or consignee of goods shall not transport goods on a public road or accept goods unless such transportation is fully insured for damages that can occur as a result of an incident.


The effect of the legislation on consignors and

consignees are practically– In most transport industries the installation of

weighbridges that are capable of measuring axles and axle units.

the issuing of documents reflecting the correct masses. This will obviously be controlled at weighbridges and if found to be wrong, consignors could be prosecuted for transgressing the regulations.

the control of the mass distribution on a vehicle. Currently most consignors only concern themselves with the total vehicle mass and do not really address load distribution.

Axle mass overloads are treated in the same manner as vehicle overloads.

Effect of legislation

The loading instructions must be in compliance

with the National Road Traffic Regulations The relevant regulations relating to permissible

maximum masses are reg 234 to 237 Reg 238 controls tyre loadings Reg 239 controls gross masses determined by

the manufacturer Reg 240 regulates road limits Reg 241 determines the bridge formula Reg 242 – regulates the steering axle and

balance of the vehicle

loading INSTRUCTIONS

Definitions

Important to understand terminology Loading instructions will contain

legal terms Should correspond with terms used

at weigh bridges

Combination of motor vehicles consisting

of a truck-tractor and a semi-trailer All definitions need to be checked to

determine the exact meaning of definition

20

ARTICULATED MOTOR VEHICLE

DGING THE GAP BETWEEN TH EO R Y AN D PRACT

Truck-tractor is a motor vehicle designed

to draw other vehicles, not to carry any load except that imposed by a semi-trailer or ballast

21

TRUCK-TRACTOR


means a motor vehicle designed or adapted mainly for drawing other vehicles and with a gross combination mass not exceeding 24 000 kg, but does not include a truck-tractor

22

TRACTOR


means a motor vehicle, designed or adapted mainly for drawing other vehicles, and with a gross combination mass exceeding 24 000 kg, but does not include a truck-tractor or tractor;

Haulage Tractor

Motor vehicle – includes trailer Trailer – includes all vehicles that are

designed to be drawn by a motor vehicle and runs on wheels

Semi-trailer – trailer with no front axle and at least 15% of the mass carried by the drawing vehicle

Trailer and Semi-trailer

A vehicle that is designed or adapted to

carry goods Goods means any moveable property Excludes a motor car, minibus, bus,

motorcycle, tricycle, quadrucycle Includes a truck tractor, adapter and

converter dolly, breakdown and a haulage tractor

25

GOODS VEHICLE


TARE“tare”, in relation to a motor vehicle, means the mass of such vehicle ready to travel on a road and includes the mass of—(a)any spare wheel and of all other accessories and equipment supplied by the manufacturer as standard for the particular model of motor vehicle concerned;(b)anything which is a permanent part of the structure of such vehicle;(c)anything attached to such vehicle so as to form a structural alteration of a permanent nature; and(d)the accumulators, if such vehicle is self-propelled by electrical power, but does not include the mass of—(i)fuel; and(ii)anything attached to such vehicle which is not of the nature referred to in paragraph (b) or (c);

GROSS MASSES“gross combination mass”, in relation to a motor vehicle which is used to draw any other motor vehicle, means the maximum mass of any combination of motor vehicles, including the drawing vehicle, and load as specified by the manufacturer thereof or, in the absence of such specification, as determined by the registering authority;

“gross vehicle mass”, in relation to a motor vehicle, means the maximum mass of such vehicle and its load as specified by the manufacturer thereof or, in the absence of such specification, as determined by the registering authority;

“axle” in relation to a vehicle, means a device or set of

devices, whether continuous across the width of the vehicle or not, about which the wheels of the vehicle rotate and which is so placed that, when the vehicle is travelling straight ahead, the vertical centre‑lines of such wheels would be in one vertical plane at right angles to the longitudinal centre‑line of such vehicle;

“axle‑mass load” the sum of the wheel mass load of all wheels on an axle;

“axle unit”, in relation to a vehicle, means— (a) a set of two or more parallel axles of such vehicle which

are so interconnected as to form a unit; and for the purpose of the definition of “wheelbase” and Parts III

and IV of Chapter VI, in the case of a trailer, two or more axles, whether interconnected or not, where the distance between adjacent axles is less than one comma two metres;

Axle, axle-mass load, axle-unit

Any road, street or thoroughfare where

the public or part of the public have common use or right of access,

Includes culverts and bridges Whole road reserve is part of the public

road Distinguish from “roadway”

PUBLIC ROAD

Operate includes permit to operate Have a vehicle on a public road Permit to have a vehicle on a public road If owner gave permission he can be

prosecuted as well

OPERATE ON A PUBLIC ROAD

a) Information to authorities on

address, proxy, etc.b) Protect card – display in windowc) Control driver – All offences,

specific PrDP and overloadingd) Vehicle fitness – RWC, licence,

etc.e) Safety of public – general safetyf) Dangerous goodsg) Loading and transportation

Duties of operator- Section 49 - NRTA

Will influence overloading

cases Operators also prosecuted Additional infringement R 1250 and 4 demerit points May generate court cases

AARTO

AARTO – Schedule 3 column 11

lists all the offences and infringements that the operator will also be charged for

All roadworthy offences, overloading offences, dangerous goods and if the driver does not have a licence or PRDP

Operator card - 12 points per card

AARTO and Operators

Item Code Ref Description Cl Penalty D P Rand Disc Pay Op

1234 1704 Reg 35(7) Vehicle with no front or rear number plate

O C 6 0 0 0 49(d)

130 1900Sect. 32(1)

Operated a goods vehicle with a GVM > 3500 kg. without a professional driving permit issued to him or her .

I 25 4 1250 625 625 49(c)

531 2684Reg. 192A(2)(a)

Goods vehicle with GVM more than 3500kg not fitted with contour or strip markings at the sides / rear or such markings affixed higher than 600mm from lower part of body

I 10 1 500 250 250 49(d)

1293 3700Sect. 58(1)

Failed to stop motor vehicle at stop sign of traffic or customs official. Non-RWC

I 10 1 500 250 250

Section creates presumption State cannot prove company

procedures Operator must prove

That he did everything reasonable, to ensure that offences that may not committed under sec 49, have been done

That he did not connive with employee That it was not part of job description

Section 51

MEC has authority to investigate

driver and vehicle records as well as overall performance of operator

Record keeping has improved Possible to trace overloading offences

of specific operator Future requests to be sent through to

MEC Foreign vehicles – Request for

revoking permits

Section 50

Presumptions

Legal tool to assist state Certain facts presumed Burden on accused to create doubt on

facts Vital tool to ensure legal system is not

frustrated Sections 69 to 73 Various other presumptions

Legal Presumptions

Where in any prosecution for an alleged

contravention of any provision of this Act, evidence to prove such contravention is tendered of any mass as ascertained by means of a mass-measuring bridge or other mass-measuring instrument, such mass shall be deemed to be correct in the absence of evidence to the contrary.

GVM Presumption – sec 71

mass ascertained by means of mass-measuring bridge or other mass-measuring instrument – sec 70

All vehicles are limited to a 2%

tolerance: 56 000 kg PMCM - 57 120 kg 30 000 kg PMCM - 30 600 kg 10 000 kg PMVM - 10 200 kg 2 500 kg PMVM - 2 550 kg Axles and axle-units are limited to

a 5 % tolerance 9 000 kg PMAM – 9450 kg 18 000 kg PMAUM – 18 900 kg 24 000 kg PMAUM – 25 200 kg

TOLERANCES

Safety

Tyres: SABS 1550 or manufacturer specifications. Tyre overload will cause damage to tyre. Inflation pressure relevant

Manufacturer specifications: Plate on goods vehicles, buses and minibuses

Infrastructure protection Roads: reg 240 Bridges: reg 241

Elements – LOAD CONTROL

Tyre sizes Inflation pressure relevant Single or duel mounted tyres have

different masses Manufacturer specifications in pounds,

must be converted to kilograms SANS 1550

Tyres – REG 238

GA gross axle mass GAU gross axle unit mass GVM gross vehicle mass GCM gross combination mass GKM gross kingpin mass T tare P/D power of engine – kilowatts Owner responsible for correct info on

plate

Manufacturer specifications – REG 239 and REG 245

Safety Power of engine must be sufficient to

draw vehicle 240 kg for 1 kilowatt power Traction = 5 x actual mass on driving

axle/s Gross masses = maximum allowed before

safety is jeopardised

Manufacturer’s specifications

Road building costs exorbitant Maintenance of roads also very expensive Axles have to be limited to avoid damage

to road surface and foundation Distribution of mass – important to

protect bridges Gauteng project – 20 billion rand

Road and bridge costs

1 axle, 2 or 3 wheels – 8 000kg 1 steering axle, 2 wheels – 7 700kg 1 axles, 4 wheels – 9 000kg Axle-unit, 2 axles, 2 or

3 wheels each – 16 000kg Axle-unit, 2 axles,

4 wheels each – 18 000kg Axle-unit, 3axles, 2,3 or

4 wheels each – 24 000kg

Road limits – REG 240

Distance between axles of axle groups

measured (L) (L) x 2100 + 18 000 = max mass according to

bridge formula Combinations must be measured on both

sides Round measurement up,

e.g. 15.46 m = 15.50m Any group may be used Axle-units may not be used for

bridge formula

Bridge formula – REG 241

Permissible maximum masses Creates formula to determine

overloading 234 + 235 = Axles and axle-units – same

principles 236 + 237 = vehicles and combinations –

same principles

Formulas –REG 234 to 237

Have to determine the permissible

maximum axle and axle-unit mass load= least of three masses:

3 elements: Tyres = reg 238 Manufacturer specifications = reg 239 and

245 Road limits = 240

AXLES and AXLE-UNITS Reg 234 +

235

Calculation

Tyres – Reg 23822 12.5R = 3000kg4 tyres x 3000 = 12 000kg

Manufacturer’s specs – Reg 239 + 245GA 10 000kg

Road limit – Reg 2409 000kg

Least of masses

9 000kg

Tyres – Reg 238 Permissible

mass22 12.5R = 3000kg 18 000 kg8 tyres x 3000 = 24 000kg

Manufacturer’s specs – Reg 239 + 245GAU 20 000kg

Road limit – Reg 24018 000kg

Axle-unit – REG 235

Sum of axles and axle-units GVM or GCM P/D x 240 (400 – tractor) 5 x actual mass of driving axle/s Bridge formula: (L) x 2100 + 18 000kg Proviso: 56 000kg

Vehicles and combinations

Reg 236 and 237

Bridge formula: (L) x 2100 + 18000

Sum of axles and units: 6 500kg + 18 000kg + 24 000kg = 48 500kg GCM:72 000kg P/D 310 x 240 = 74 400kg 5 x 18 000kg = 90 000kg 17.60 x 2100 + 18 000kg = 54 960 Proviso not applicable

Calculation

“One Tonner” Understand that vehicle can carry one

ton – not correct Calculation:

GVM 3250 kg Tare 2250 kg Load 1000 kg This includes driver, assistant,

fuel, spare wheel, etc.

Calculation

Under loading of the steering axle –

offence Articulated vehicle – 11% of the actual

masses of the axles of the drawing vehicle and first trailer

4 500 + 19 800 + 21 000 = 45 300 11% = 4983 – 5% = 4753 kg Under load on steering axle Rigid vehicle = 20%

REG 242 – Steering axle

Overloading control

In cases where drivers are arrested the operator or owner, in the case of a bus, should also be prosecuted

Suggested standard fines for overloading included Breakdown vehicles

Front axles that are overloaded when empty Overloaded towed vehicles – driver of breakdown not to be

prosecuted Dangerous goods vehicles

Escorted to designated off-load area – has to return to weigh bridge

Abnormal vehicles No faxed copies allowed Non compliance with permit – prosecution as though no permit

Guideline on mass measuring

Reg 246 All goods secure Covered Containers – twist locks May not dislodge or spill

Goods secure

Enclosed to 350 mm for seated and

900 mm for standing passengers Passengers and goods must be

separated Passengers and tools must be

separated Reg 247

Passengers on goods vehicles

Offences

Sec 89 Reg 333 One year imprisonment is equal to

R 20 000 Different provisions for different

offences Overloading - R 120 000 or 6 years

imprisonment or both

Offences

The new legislation will have a positive

effect on the percentage overloaded vehicles on the road as the overload is stopped at the source

Consignors and consignees will have to ensure they can comply with the requirements, as there will be costs involved in compliance with the legislation.

No transitional provisions The Loading instructions need to comply

with the NRT Regulations

conclusion