JPSA's comments on government gazette 38772 of 11 May 2015

The following submission was made to the Department of Transport by JPSA on Wednesday 10 June 2015 and is published here for public consumption and in the interests of transparency: 

Phillip Magagane and John Motsatsing
Department of Transport
Private Bag X193
PRETORIA
0001

PER EMAIL TO: magaganp@dot.gov.za and motsatsj@dot.gov.za

Your Ref: PUBLICATION OF THE NATIONAL ROAD TRAFFIC REGULATIONS FOR COMMENTS
Our Ref: GG
38772 Comments

Wednesday, 10 June 2015

Dear Sirs,

PUBLICATION OF THE NATIONAL ROAD TRAFFIC REGULATIONS FOR COMMENTS

1.    We refer to the proposed amendments to the National Road Traffic Regulations tabled in Notice No. 411 of 2015 in Government Gazette No. 38772 of Monday 11 May, 2015.

1.1.  Justice Project South Africa hereby submits the following comments and inputs on the proposed amendments contained in the aforementioned notice for your consideration.

2.    At the outset, we wish to place on record that we acknowledge and accept responsibility for the fact that many of the proposed amendments contained in this notice have apparently stemmed from the adoption of some of the resolutions which were proposed by the writer, on behalf of Justice Project South Africa at the National Road Safety Summit held in Boksburg in October 2013.

2.1.  Never in our wildest dreams would we have imagined that our proposals would have been so thoroughly misunderstood and/or bastardised by persons at the Department of Transport who have now clearly demonstrated that they do not have any idea whatsoever of what the real problems are, let alone how to start addressing them.

2.2.  At the very least, we would have expected some form of engagement from the Department of Transport so that it may have gained a workable knowledge of the problems at hand and how to address them. Instead, we note that JPSA has been all but completely shunned and/or ignored by the department and its cronies.

3.    Now that we have dealt with the preamble to this submission, let us move onto the “nuts and bolts” hereof.

4.    Insertion of regulation 107D in the Regulations

4.1.  The draft insertion reads as follows:
107D. Manner and contents on which an applicant for the renewal of a driving licence card is to be evaluated.
(1) An applicant for the renewal of a driving licence card shall before obtaining a new driving licence card be evaluated by an examiner for driving licences.
(2) The examiner for driving licences shall by observation, inquiry and practical test, satisfy himself or herself that the applicant-
(a) holds a driving licence which authorises him or her to drive the class of motor vehicle to which his or her application relates;
(b) knows and understands the road traffic signs;
(c) has a sound knowledge of the rules of the road and the different signals which a driver of a motor vehicle is required to give when driving on a public road;
(d) is not subject to any disqualification referred to in section 15 of the Act or regulation 102; and
(3) For the purposes of subregulation (2) an applicant shall not be required to undergo a written test.”

4.2.  It may be argued that retesting currently licensed drivers is the only practical way to detect driving licenses which may have been irregularly issued as a result of corrupt activities practiced in Driving Licence Testing Centres (DLTCs) for decades now.

4.2.1.    One needs look no further than the most recent hike in the Road Accident Fund levy increase of 50c per litre of fuel sold to find evidence of the fact that South Africa is losing the battle against road fatalities and injuries and it follows that if many driving licence holders on our roads are quite simply unqualified to hold them, that this can be identified as one of the root causes of the carnage on our roads.

4.2.2.    The evidence of the irregular issue of driving licenses under circumstances involving corrupt activities is far from anecdotal. The 2003 report of the SIU regarding this very topic revealed that at least half (50%) of the driving licenses issued since 1998 where invalid in one way or another. It's probably not a coincidence that road death rates doubled from 1998 to 2006 and it’s probably not a coincidence that since then, South Africa has consistently maintained a significantly high road carnage record, leading it to be the second worst in Africa and amongst the worst in the world when it comes to road safety.

4.2.3.    Since then, the Department of Transport has done little or nothing to rectify that identified problem, let alone actively combat and eradicate corruption in driving licence testing centres throughout the country. Twelve years later, we sit in a situation where it is a well-known fact that driving licence examiners are actively involved in soliciting and/or accepting bribes in order to pass prospective driving licence holders and/or to stop continually failing them until they do resort to paying a bribe. Intriguingly, the Department of Transport has repeatedly laid the blame for this phenomenon at the feet of driving schools, despite the fact that it is not currently a legislative requirement that any learner undergoes any form of even minimum formal training.

4.2.4.    As recently as earlier this year, 8 traffic officers who were also driving licence examiners and 10 driving instructors in KwaZulu-Natal were convicted of corruption for “selling” driving licenses wherein examiners would overlook “mistakes” in the practical test for the sum of R5,000 and not subject people to any practical test at all in return for R6,000. This conviction in the Eshowe Magistrates Court is encouraging on one level, because it shows that at least some people are being convicted, however just as “one swallow does not a summer make”, a few convictions from ONE of the numerous DLTCs in South Africa does not constitute a system-wide flushing out of corrupt officials.

4.2.5.    On the face of things, the argument of retesting current driving licence holders not only has some merit, but clearly presents the only logical and practical way to detect and filter out irregular/invalid driving licenses which have indeed been issued to unqualified drivers by corrupt officials.

4.2.6.    It however presupposes that the persons conducting these retests will be materially different persons to their corrupt counterparts who issue irregular driving licenses in the first place and this view is, at its very best, naïve.

4.2.7.    In practical implementation however, the self-same corrupt driving licence examiners currently in the system will be the identical people who currently issue irregular/invalid driving licenses. Even if the staff capacity of driving licence examiners is increased dramatically, it won’t be long before newly hired driving licence examiners cotton onto the fact that they too can augment their incomes by huge amounts by simply engaging in similar or the identical corrupt activities practiced by their existing counterparts.

4.3.  We regret to inform you therefore that not only is this proposed regulation thoroughly impractical, but is devoid of any merit whatsoever whilst the current situation of rife corruption and gross inefficiencies in Driving Licence Testing Centres (DLTCs) countrywide prevails. We further clarify our standpoint in the following paragraphs:

4.4.  Practical issues

4.4.1.    It is estimated that South Africa currently has some 11 million licensed drivers. Unfortunately we cannot be completely sure on this number due to the inaccessibility of transparent information, but the figure is most probably close enough to being accurate.

4.4.2.    Assuming that it would be as simple as dividing the 11 million licensed drivers by 5 in order to establish how many would have to be retested on an annual basis, this would equate to 2.2 million licensed drivers having to be retested every single year, bearing in mind that a driving licence card is valid for five years.

4.4.3.    The DLTCs throughout South Africa currently allegedly licence some 500,000 new drivers on an annual basis. To add a further 2.2 million, which is more than four times that quantum would require a an absolute minimum increase in the staff compliment of driving licence examiners to be available to conduct these retests, in other words, quadruple the current driving licence examiner staff compliment.

4.4.4.    Bookings for practical driving tests must currently be done in person. Regardless of whether this situation is changed or not, it is a time-consuming process and it is reasonable to assume that the same requirements will be imposed on persons wishing to renew their driving licenses.

4.4.5.    Learner drivers who schedule their practical driving tests currently have to wait for anything between a few days and six months, or longer in order to undergo their practical driving test.

4.4.6.    These tests are conducted on weekdays, between 08:00 and 14:45, excluding Sundays and public holidays, and tests on Saturdays are not available in all, or even most DLTCs. No tests are conducted after working hours, or on public holidays.

4.4.7.    A large proportion of employed persons are unable to take time off work in order to book such retests and then undergo them, and regardless of whether they would indeed be in a position to take the time from their annual leave allocation, this would require that they actually have annual leave available to them, failing which, it would constitute unpaid leave.

4.4.7.1.        The second that such a person fails a retest, they would be forced into a situation where they would need to take additional leave, which, whilst sounding easy enough, may have enormous practical and financial implications for them.

4.4.7.2.        Licensed drivers wishing to renew their driving licenses are generally economically active individuals who generally do not have the luxury of unlimited time off work and who are currently subjected to DLTCs which close their doors at any given time of the day, depending on how busy they feel they are. This situation is already the cause of serious frustration to licensed drivers and will definitely be exacerbated by further causing them to queue for hours on end in order to book, let alone undergo a retest.

4.4.7.3.        Should a currently licensed driver fail any retest for any reason whatsoever, that driver would effectively be unlicensed to drive from that point onwards, and until such time as they can successfully pass the test. In many cases, this would mean that the driver in question would become economically inactive if they cannot afford to engage the services of a licensed driver to drive them. Furthermore, such a situation could conceivably constitute valid grounds for dismissal by a company which cannot afford to lose the services of that driver.

4.4.7.4.        It is also important to note that the employment of some people is directly linked to them holding a valid driving licence. Sales representatives, company messengers and drivers, consultants, self-employed persons, etc. all rely heavily on being licensed to drive and the consequences of not being so could lead to them losing their jobs/income. Clearly, if this happens as a direct result of them genuinely being dangerous drivers, as would be the case under the AARTO Act should they incur sufficient demerit points to cause their licenses to be suspended, this would be their own fault. However, if this were to happen based on the arbitrary subjective opinion of a driving licensing examiner, it would be disastrous for them.

4.4.7.5.        It is additionally relevant to bear in mind that a large proportion of currently licensed drivers will have to undergo formal training in order to satisfy the current K53 requirements since they obtained their driving licenses prior to the introduction of K53. This will, in addition to the expense incurred as a result of it, further require additional time off work for such drivers, thus further placing a significant strain on the economy of South Africa.

4.5.  Legislative issues

4.5.1.    The construction of this proposed regulation is so loose and vague that it will most definitely lead to its improper implementation.

4.5.2.    The question must be asked “what exactly does the entire contents of regulation 107D mean and what is it intended to achieve?” since it does not define any objective prescribed test but leaves the practical tests to the subjective opinion of an examiner of driving licenses. Apart from sub regulations 2(a) and 2(d), everything else contained in this regulation is subject to the subjective opinion of an examiner of driving licenses. The vagueness and ambiguousness of the regulation renders it unlawful.

4.5.2.1.        What is there to stop an examiner of driving licenses subjecting one person to a minimal “test” or casual observation whilst subjecting another to what is tantamount to jumping through hoops, depending on how that examiner wishes to treat a particular individual?

4.5.2.2.        We further DO NOT find anything in the regulations which prescribes what would happen were to fail his or her retest. Must such a person now start from scratch and obtain a learners licence again?

4.5.2.3.        Because this so-called “retest” does not prescribe any standard test criteria upon which a person may be passed or failed what recourse does the holder of a valid driving licence due for renewal have if he or she is arbitrarily failed on such a retest?

4.5.3.    It can be successfully argued that one of the key areas South Africa needs to be addressing, is reviewing and modernising is the K53 driving system which is currently used, in some cases to train new drivers, but in all cases, to test new drivers:

4.5.3.1.        Despite numerous so-called “upgrades” in the K53 manual since its inception, the latest version thereof is almost a decade old – dated August 2005 and implemented on 7 April 2006.

4.5.3.2.        There is apparently a 2015 version thereof which has NOT been promulgated yet, however this draft does modernise the system to a sufficient extent and has apparently been drafted without so much as seeking any inputs from ALL national driving school/instructor associations, nor from any road safety experts.

4.5.3.3.        Despite this standard claiming to be a “defensive driving” technique, in reality, it serves as nothing more than a series of pronounced actions which need to be demonstrated to an examiner in order to pass a test.

4.5.3.4.        It is a well-known and demonstrated fact that most drivers discard almost every provision of the K53 system the second they acquire their full driving licenses. This anomaly can most likely be attributed to the human psyche presuming that what they had to pronounce in order to convince a driving licence examiner that they were in fact doing their “observations” appears to hold no value in practical driving.

4.5.3.5.        There is currently NO legislative requirement for any learner driver to undergo even a minimum level of formal training with a qualified driving instructor. The vast majority of drivers who do go to a qualified, but often, unqualified driving instructor do so purely for purposes of brushing up on the K53 requirements they will be tested on. This typically involves one or two, one hour lessons with a driving instructor, the choice of which typically goes to the lowest bidder, where they are taught the play-acting required in order to convince an examiner that they are, for example, performing the requisite observations.

4.5.3.6.        When performing observations for purposes of the test it is mostly necessary for the driver to artificially pronounce the observations they are performing to such an extent that they end up bouncing their heads around like something from the Amityville Horror. This is done purely to convince the examiner that they have done these observations, rather than to perform do the requisite safety checks.

4.5.3.7.        Additionally, the subjective opinion of the examiner as to the actual performance of these checks has caused the majority of failures since the criterion was introduced and a person undergoing the test has absolutely no defence whatsoever against examiners who wish to fail them for one reason or another, including but not limited to wanting to bring an early end to the test, encourage the person to pay a bribe, etc. through repeated failures.

4.5.3.8.        No hazard perception testing is required in South Africa, despite the fact that this has been a requirement in numerous countries to which South Africa looks up to and likes to cite as being successful in reducing their road carnage have incorporated such tests into their licensing systems for ages now.

4.5.3.9.        A system of vehicle control which uses a standard uniform approach to hazards has been specifically excluded from the K53 manuals from the outset, yet this forms the heart of what the K53 and advanced driving system should incorporate.

4.5.3.10.      The value of the K53 test with respect to encouraging defensive driving and road safety is therefore highly questionable and wide open to abuse by corrupt officials.

4.5.3.11.      Re-looking of the K53 testing should therefore be the starting point in addressing road safety issues including formalizing the driver training industry by introducing some minimum standards for and registration of trainers

4.6.  The facilitation of FURTHER corruption 

4.6.1.    In the absence of the TOTAL ERADICATION of corruption in DLTCs, the introduction of this provision will, without a shadow of a doubt, lead to a sharp escalation in the corrupt activities that currently prevails in DLTCs throughout South Africa due to the informal “one on one” procedure that is envisaged in the new regulations.

4.6.2.    It is a sad fact that the true levels of corrupt activities in DLTCs is impossible to quantify accurately due to the relatively private nature of corrupt transactions. While some people are blatant in stating that they have indeed engaged in corrupt activities in acquiring their driving licenses, it can be categorically stated that persons who are willing to reveal this fact merely represent the tip of the iceberg, since most people would never admit to having committed a crime.

4.6.3.    It is more than apparent that licensing authorities countrywide have done little or nothing to combat corruption in their DLTCs and sadly, there is actually a benefit to the revenues DLTCs receive that arises out of repeated testing of individuals who fail their driving licenses, some of whom are repeatedly failed by examiners until such time as they capitulate and pay a bribe. It can therefore be deduced that there is little or no motivation for these authorities to tackle corruption effectively since it would undoubtedly lead to a reduction in their revenues.

4.6.4.    The second that the pool of parties to fail when being tested increases, so will the pool of persons who will be willing to pay a bribe in order to circumvent the undesired consequences of failing a retest for their driving licence. This pool will grow significantly if currently licensed drivers are brought into it, and this is more especially relevant insofar as currently licensed drivers who rely on their licenses to make a living will be all the more inclined to pay a bribe in order to retain their driving licenses – and their livelihood.

4.7.  Current serious deficiencies in Professional Driving Permits (PrDP)

4.7.1.    If you refer to the actual contents of our submissions at the 2013 National Road Safety Summit, you will discover that it was our assertion that there currently exists a serious deficiency in the issue of Professional Driving Permits.

4.7.2.    Whereas additional training and evaluation of drivers seeking a PrDP for dangerous goods, no similar requirement exists for a PrDP for passengers. This anomaly is preposterous in the extreme, since it would appear that a greater value is placed on the transportation of dangerous goods than on the preservation of human lives.

4.8.  Recommendations

4.8.1.    In light of the forgoing and the serious issues it exposes, it is our recommendation that this proposed insertion into the National Road Traffic Regulations be scrapped in its entirety until such time as:

4.8.1.1.        CORRUPTION HAS BEEN TOTALLY ERRADICATED IN ALL DLTCs;

4.8.1.2.        Booking mechanisms for

4.8.1.3.        The personnel and testing facilities in all DLTCs countrywide have been increased sufficiently to cater for the demand of practical tests for both, new and currently licensed drivers;

4.8.1.4.        Practical driver testing is available on a 24/7/365 basis;

4.8.1.5.        Waiting times for tests of any period of time have been reduced to twenty-four hours, at the very longest;

4.8.1.6.        The Department of Transport AND ALL provincial and local licensing authorities can prove that corruption has been eradicated and can demonstrate that sufficient budgets exist in order to facilitate ALL of the above; and

4.8.1.7.        A proper, formalised and prescribed defensive driving training and testing regime has been legislated and implemented for persons wishing to acquire a PrDP for the transportation of passengers for gain and/or in motor vehicles for which an operator card is required;

4.8.1.7.1.            Once a person has undergone an approved passenger transport training regime, they MUST undergo a properly defined, prescribed and legislated passenger transport PrDP test at a DLTC; and

4.8.1.7.2.            Each time they wish to renew their PrDP, they MUST be retested and successfully passed such test before having their passenger transport PrDP renewed.

4.8.1.7.3.            Clearly, the appeals process which currently exists with respect to practical driving licence tests will have to be extended to PrDP testing procedures.

In the absence ALL of the forgoing, Justice Project South Africa will not only oppose this proposed amendment to the National Road Traffic Regulations, but will actively and urgently have to consider seeking relief on behalf of its members from the Courts to prevent the extreme prejudice and threat to the economy which will be caused by its implementation.

5.    Amendment of regulation 247 of the Regulations

This draft regulation amendment reads as follows:
“(1) No person shall operate on a public road a goods vehicle conveying persons unless that portion of the vehicle in which such persons are being conveyed is enclosed to a height of-
(a) at least 350 millimetres above the surface upon which such person is seated; or
(b) at least 900 millimetres above the surface on which such person is standing,
in a manner and with a material of sufficient strength to prevent such person from falling from such vehicle when it is in motion.
(2) No person shall convey more than 5 persons in the goods compartment of a goods vehicle, the gross vehicle mass of which is less than 3 500 kilograms.
(3) The provisions of this regulation shall only apply in respect of a person conveying persons as their employer during the scope of employment of such persons.

Provided that no person shall be conveyed in the goods compartment together with any tools or goods, except their personal effects, unless that portion in which such persons are being conveyed is separated by means of a partition, from the portion in which such goods are being conveyed.".

5.1.  We have significant and stringent objections to this proposed amendment since it is thoroughly nonsensical.

5.2.  Firstly, whilst South Africa’s available road fatality and injury data is useless with respect to determining where in a motor vehicle a passenger was seated at the time of a collision, there is sufficient anecdotal evidence which shows that persons seated in the goods compartment of a light delivery vehicle, truck or trailer attached to a heavy goods vehicle suffer significant injury when such a vehicle crashes. Typically, such passengers are ejected from these vehicles in the event of a collision at any speed greater than a snail’s pace and even if they aren’t they are flung about and injured.

5.3.  It is currently law that any person seated in a motor vehicle, excluding a motorcycle MUST wear a seatbelt, yet the second a person is conveyed in the goods compartment of a light delivery vehicle, truck or trailer attached to a heavy goods vehicle, this provision falls away – mainly because the goods compartments of light delivery vehicles, trucks and trailers attached to heavy goods vehicles are designed to carry GOODS, NOT PASSENGERS.

5.4.  The South African Revenue Service (SARS) currently has a policy of allowing VAT refunds on purchases of single-cab bakkies where these vehicles are purchased by registered VAT vendors for commercial use.

5.4.1.    Small contractors who convey their employees in the goods compartment of light delivery vehicles typically do so as a direct result of the fact SARS refuses to refund VAT to them for double-cab bakkies, with SARS citing the pathetic excuse that a double-cab bakkie is a so called “luxury vehicle”.

5.4.2.    It therefore follows that the greed of government has directly contributed to road deaths and injuries by acting in such an unconscionable manner towards businesses.

5.5.  Subregulation (3) makes the ENTIRE provisions of Regulation 274 applicable ONLY to “a person conveying persons as their employer during the scope of employment of such persons”.

5.5.1.    Quite aside from the appalling grammar used in subregulation (3) the Minister and Department of Transport appears to be under the glaringly obvious FALSE impression that when light delivery vehicles crash, the only persons travelling on such vehicles are the employees of companies who are additionally only being conveyed “during the scope of employment”.

5.5.2.    Whilst this may indeed be the case in trucks and in trailers attached to heavy goods vehicles, which are additionally not contemplated in this proposed regulation amendment, it is most certainly NOT true in the case of light delivery vehicles (bakkies).

5.5.3.    A significant proportion of persons conveyed in the goods compartments of light delivery vehicles (bakkies) are NOT employed by the owners of such vehicles, but are family members and/or children, persons seeking a lift and sometimes even conveyed for monetary reward, etc. It can therefore be concluded that the Minister and Department of Transport regards the lives of employees as being more valuable than the lives of any other persons.

5.5.4.    This further raises the question of whether the Department of Transport considers itself to be a Trade Union, concerned with the rights and wellbeing of workers alone, as opposed to being a Department concerned about road safety and the safety of all persons.

5.5.5.    The ridiculousness of this provision is further exacerbated by the impossibility of enforcing it.

5.5.5.1.        How exactly does the Department of Transport think that a traffic officer will be able to identify the status of any persons being conveyed in the goods compartments of goods vehicles as being employees of the owner of the vehicle in question?

5.5.5.2.        Even if those persons are the employees of the vehicle owner, what is to stop that vehicle owner raising the valid defence that he or she is not conveying their employees “in the scope of their employment” but is instead giving them a lift to or from home from or to work and such employees agreeing that this is the case because they don’t want to get their “boss” into trouble for fear of losing their jobs?

5.5.6.    It is also worth noting that the South African Police Service makes extensive use of light delivery vehicles in its operations and, despite installing metal canopies to and installing steel benches in such vehicles, it provides no seatbelts therein.

5.5.6.1.        Such vehicles are sometimes used to give detained persons “rough rides” wherein they are flung around in the back of these bakkies by, inter alia engaging in harsh steering and braking. This phenomenon is not unique to South Africa, however the lack of seatbelts therein is uncommon elsewhere in the world.

5.5.6.2.        SAPS even has the audacity to then place stickers on their vehicles “certifying” them to carry a certain number of “persons”. 

5.5.6.3.        The question therefore must be asked – whom exactly makes such a certification and on the basis of what legislated or national standard is this certification made, since we cannot find any?

5.5.6.4.        There is no excuse for endangering the lives of any person, even if such person happens to be under arrest by SAPS. It is our assertion that if government wishes to regulate the transportation of persons in the goods compartments of light delivery vehicles it should start by getting its own house in order, BEFORE seeking to impose provisions on others.

5.6.  Recommendations

5.6.1.    If regulation 247 had ANYTHING to do with road safety and preventing death or injury, instead of generating fines revenues for traffic authorities, it would read:
“No person shall operate on a public road a goods vehicle conveying persons unless such persons are in the passenger compartment of such motor vehicle.”

5.6.2.    This provision should NOT be further defined to be applicable or inapplicable to any particular section of road user, but should constitute a TOTAL BAN on conveying any persons on the load bays of goods vehicles.

5.6.3.    Such a provision would however present a significant challenge with respect to the so called South African “roads network”, particularly in rural areas where gravel roads, many of which are inaccessible to motor cars and/or minibuses.

5.6.4.    As you should be aware, the current South African “roads network” comprises 760,000 kilometres of roads, of which only 161,831 kilometres (22%) are paved. The remaining 591,869 (78%) of roads in South Africa are gravel roads, many of which, to quote the Free State MEC for roads, are “dongas” which are inaccessible to motor cars, minibuses, etc.

5.6.5.    Therefore, bringing about a total ban on conveying persons in the load bays/goods compartments of goods vehicles is not only impractical but would relegate people who live in rural areas managed by ethically bankrupt municipalities and provincial authorities who see no need to maintain the gravel roads they provide to having to travel vast distances on foot or on a bicycle.

5.6.6.    Perhaps regulation 247 should therefore be amended to read “No person shall operate on a PAVED public road a goods vehicle conveying persons unless such persons are in the passenger compartment of such motor vehicle.”

5.6.7.    This, we believe, would address the current problem without disadvantaging rural communities who have very few motorised transportation options open to them.

6.    Amendment of regulation 250 of the Regulations

This proposed amendment reads:
“No person shall on a public road convey-
(a) school children; or
(b) any person for reward, unless an exemption is issued to such person in terms of the provisions of the NLTA, in the goods compartment of a motor vehicle.”

6.1.  Once again we see an acutely inane provision being proposed.

6.2.  We refer you to our comments in paragraphs 5 hereof, most of which are similarly applicable to this proposed amendment and accordingly reject the contents thereof.

7.    Amendment of regulation 292 of the Regulations

This proposed amendment reads as follows:

“292. General speed limit

A general speed limit of -

(a) 40 kilometres per hour shall apply in respect of every public road or section thereof, situated within an urban area;
(b) 80 kilometres per hour shall apply in respect of every public road or section thereof, other than a freeway, situated outside an urban area; and
(c) 120 kilometres per hour shall apply in respect of every freeway: Provided that a speed limit of 100 kilometres per hour shall apply in cases wherein such freeway passes through a residential area.”

7.1.  This proposed amendment is so fraught with problems that it is difficult to know where to start with addressing these issues. We shall however do our best to do so.

7.2.  Definitions of public roads and the areas they fall within, in the National Road Traffic Act

7.2.1.    In order to even begin to contemplate general speed limits, it is necessary to understand the definitions of the various areas and roads defined in Section 1 of the National Road Traffic Act. Currently, with the exception of a “public road” only the following definitions applicable to public roads exist in the Act:

7.2.1.1.        “public road” means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes—
(a) the verge of any such road, street or thoroughfare;
(b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
(c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare.

7.2.1.2.        There is only one particular area and one particular public road defined in the National Road Traffic Act:

7.2.1.2.1.            “urban area” means that portion of the area of jurisdiction of a local authority which has by actual survey been subdivided into erven or is surrounded by surveyed erven, and includes the public roads abutting thereon.

7.2.1.2.2.            “freeway” means a public road or a section of a public road which has been designated as a freeway by an appropriate road traffic sign.

7.2.1.3.        A “residential area” is NOT contemplated in the Act, nor is a “rural area”, or for that matter, any other area.

7.3.  The difference between the general and a posted  speed limit

7.3.1.    It is common cause that the relevant general speed limit is applicable to any and all public roads upon which NO road traffic sign displaying a different speed limit is erected. It must be noted however that the existence of this anomaly in the South African context can and does have some serious implications.

7.3.2.    Most licensed drivers in South Africa, particularly those who spend the majority of their lives driving on roads where road traffic signs displaying speed limits are erected, become blissfully unaware of the meaning of the “general speed limit” and in many cases, what those general speed limits are, within a relatively short time of acquiring their driving licenses.

7.3.3.    If one was to take the time and effort to poll currently licensed drivers on the general speed limit applicable on a public road outside of an urban area, you may be shocked to discover that a high proportion of South African driving licence holders are under the impression that it is 120km/h, not 100km/h.

7.3.4.    Additionally, because no road traffic signs displaying the general speed limits are erected anywhere in South Africa as they are in Europe for example, drivers are never reminded of this and people including visitors to South Africa are expected to simply know what the general speed limits are. Examples of these sign boards appear below:

7.3.5.    However, the problems that are caused by setting speed limits higher than the general speed limit are significant and cannot be underestimated.

7.3.5.1.        Because people are creatures of habit, where speed limits higher than the general speed limit are erected on public roads, particularly those running through urban areas, this has the effect of mentally conditioning a motorist to believe that such higher speed limit is, or should be applicable to all roads of similar width or visual appearance running through such and other residential areas.

7.3.5.2.        The second that a lower speed limit, or indeed, no road traffic sign displaying a speed limit is erected, most drivers become blind to lower speed limits or automatically assume that the speed limit applicable to that road is the same as a visually similar road with a higher speed limit.

7.3.5.3.        For example the speed limit on the R50 Pretoria → Delmas road was set by MEC Ismail Vadi’s Gauteng Department of Roads and Transport at a ridiculously and exceedingly dangerous high speed limit. Despite this road comprising a single, narrow lane in each direction in many places, the speed limit thereon is 120km/h, which is totally inappropriate for that road. It doesn’t even come close to resembling a freeway.

7.3.5.4.        It is not unreasonable to assume that the R50 is NOT the only public road in Gauteng, or indeed in South Africa where a completely inappropriate speed limit has been set. All one has to do is to travel to Hartebeespoort from Johannesburg or on many roads in Mpumalanga to see the narrow, windy and poorly maintained roads, many of which are riddled with potholes to see how dangerous the 100km/h posted speed limits and/or the general speed limits are.

7.3.5.5.        Many other roads leading through residential areas also have speed limits higher than the general speed limit set for them however, unlike in the example above, these speed limits are generally arrived at by qualified road engineers who design those roads and in order to ensure the reasonable flow of traffic, so as to inter alia reduce congestion.

7.3.6.    When it comes to roads situated in “urban areas” the incredibly broad definition thereof creates a vast discrepancy between what an ordinary and reasonable person regards to be an “urban area” and the actual definition thereof in the National Road Traffic Act.

7.3.6.1.1.            By way of example, the entire Metropolitan Municipality of Ekurhuleni is divided into erven. This includes vast, unpopulated areas of farmlands where a motorist can travel tens of kilometres without so much as encountering another living being.

7.3.6.1.2.            Albeit that a speed limit higher than the general speed limit may, in terms of Section 59 of the National Road Traffic Act, be set for any public road other than a freeway, forcing motorists to crawl along at a snail’s pace in Ekurhuleni (and elsewhere), simply because the general speed limit has been lowered is ridiculous at best.

7.3.7.    General speed limits for paved and gravel roads are NOT separately contemplated in the National Road Traffic Act, despite the fact that bringing a vehicle to a halt on a gravel road takes significantly longer due to the lack of traction caused thereby.

7.3.7.1.        We again remind you that the current South African “roads network” comprises 760,000 kilometres of roads, of which only 161,831 kilometres (22%) are paved. The remaining 591,869 (78%) of roads in South Africa are gravel roads.

7.3.7.2.        This presents a significant problem because, unlike the countries in the first world South African authorities love citing as examples of where things are bigger and better but simultaneously have provisions which should be present in South Africa, we have a far greater proportion of dangerous roads than they do and anyone who thinks that it takes an equal distance at the same speed to bring a vehicle to a halt on a gravel road as it does on a paved road is clearly delusional.

7.3.7.3.        The general speed limit on a public road situated outside of an urban area is currently 100km/h and this proposed amendment seeks to drop that to 80km/h. Considering that 78% of South Africa’s roads network comprises gravel roads, it would certainly make sense to drop the general speed limit on gravel roads situated outside of an urban area to 80km/h, or possibly even lower, however on paved, and in many instances, proper dual carriageways with wide centre medians separating traffic flowing in different directions, doing so will merely lead to people discarding the general speed limit, or if by some miracle motorists suddenly decide to obey general speed limits, unnecessarily long travel times, thereby exacerbating the issue of driving whilst fatigued.

7.4.  Enforcement of speed limits in South Africa

7.4.1.    It is clearly necessary for us to remind the Department of Transport that despite the claim that “speed kills”, the vast majority of so called “speed enforcement” exercises in South Africa is and remains practiced by utilising speed cameras.

7.4.2.    Bizarrely, we have NEVER heard of any speed measuring/enforcement exercise taking place on any gravel road in South Africa and it is apparent that our traffic authorities prefer to stick to the easy pickings presented to them on paved roads.

7.4.3.    According to the Road Traffic Infringement Agency, in the case of the Johannesburg Metropolitan Police Department for example, 92.56% of the 6,041,555 (5,591,974) traffic fines they issued in the 2013/14 financial year were CAMERA speeding fines.

7.4.3.1.        NOT ONE of these allegedly “speeding” motorists was stopped at the time, thereby halting their commission of the alleged offence;

7.4.3.2.        NOT ONE of these fines saved ANY lives or prevented ANY injuries; and

7.4.3.3.        NOT ONE of these fines prevented ANY crashes.

7.4.3.4.        All they did was to make money for the JMPD and the RTIA.

7.4.4.    In jurisdictions where more physical enforcement takes place, where motorists are stopped at the time and issued with citations, it is highly unlikely that the associated fine has any remedial effect whatsoever on many of those fined.

7.4.5.    Sadly, so-called “speed enforcement” in South Africa is and remains focussed purely on generating revenue for the traffic authorities and has little or nothing to do with road safety.

7.4.6.    Reducing the general speed limits on public roads in South Africa WILL NOT have the effect of slowing drivers down but DEFINITELY WILL drive further revenues for the practically useless traffic authorities who choose to focus on speed and the revenues they can derive from it, instead of the plethora of other moving violations committed on our roads every single hour of every single day, or indeed, to enforce speed violations properly.

7.5.  Reducing the general speed limit applicable to roads situated in urban areas to 40km/h

7.5.1.    There is more than sufficient evidence to suggest that few drivers adhere to the current 60km/h general speed limit applicable in urban areas.

7.5.2.    Reducing the speed limit applicable to roads situated in urban areas to 40km/h will serve no other purpose than to drive further revenue generation for traffic authorities.

7.5.3.    We feel that it is necessary to point out to the Minister and Department of Transport that there is nothing to stop traffic authorities from posting lower speed limits in “high-risk zones” and properly enforcing those limits.

7.5.4.    There is also nothing to stop the Department of Transport from defining a “residential area” in the National Road Traffic Act and setting a lower general speed limit therein.

7.5.4.1.        In this regard, we refer you to your own R403 residential (woonerf) road traffic sign which, despite existing can hardly ever be spotted on any public roads in South Africa, and where it does exist, is often accompanied by an incorrect 40km/h speed limit sign.

7.5.4.2.        We are sure we don’t need to remind any of you that where this sign is displayed, the speed limit is 30km/h. Therefore, we have to ask why it would be deemed to be sensible to lower the general speed limit in “urban areas” to 10km/h higher than the 30km/h speed limit which applies where this sign is erected and where a real risk of children being on roads would exist.


7.6.  Reducing the general speed limit applicable to roads situated outside urban areas to 80km/h

7.6.1.    The current 100km/h general speed limit applicable to paved roads situated outside urban areas is sufficiently low in most areas, except where the roads therein are poorly maintained and/or riddled with potholes by the irresponsible local/provincial authorities who are supposed to maintain them.

7.6.2.    This is of course excluding a proposed general speed limit on gravel roads situated outside urban areas we propose in our recommendations where the speed limit on those roads should indeed be lowered to 80km/h or lower. No road traffic signs would have to be displayed since it is sufficiently easy to determine if the road you are driving on is paved or is a gravel road.

7.7.  Reducing the general speed limit on freeways running through urban areas to 100km/h

7.7.1.    This proposed provision, whilst possibly sounding sensible to some, is ridiculous in the extreme.

7.7.2.    Since the so-called GFIP is still so topical at the moment, we shall use this as an example of the ludicrous nature of this provision.

7.7.2.1.        Despite the fact that the some of GFIP has been engineered and built to be a high speed link between Johannesburg and Pretoria, and in places comprises of up to six lanes in each direction, the entire GFIP runs through urban areas. Reducing the speed limit to 100km/h will not only unnecessarily increase travel times but will also negatively impact on traffic flow and hence traffic congestion. It is our understanding that the GFIP was embarked upon specifically to REDUCE traffic congestion.

7.7.2.2.        The same applies to all other sections of the GFIP, all of which are physically separated from the urban areas they traverse by robust concrete walls which will crush even the heaviest of motor vehicles before they allow them to ramp up or plummet into a populated area.

7.7.3.    Other examples of urban freeways, which would be better termed as being motorways since there is nothing “free” about driving on them are the N17, N4, N14, etc.

7.7.4.    Then there are the examples of the M1 and M2 motorways in Johannesburg, both of which have speed limits of 100km/h and 80km/h posted upon them. Why would it be deemed as being in any way necessary to set a general speed limit of 100km/h on them?

7.8.  Recommendations

7.8.1.    In light of the forgoing, Justice Project South Africa makes the following recommendations:

7.8.1.1.        Make use of existing provisions in the National Road Traffic Act and Regulations to lower speed limits in RESIDENTIAL AREAS, near schools, etc.

7.8.1.2.        If you are stuck on the idea of reducing the general speed limit in urban areas, then introduce a definition for a “residential area” into the National Road Traffic Act so as to remove the ridiculously broad definition of an “urban area” and adjust that definition accordingly.

7.8.1.3.        Since you are so convinced that you can bring about road safety by decree, legislate and enforce that proper traffic calming engineering solutions are installed at all intersections and on all public roads to physically force the reduction in the speeds motorists drive down them, thereby forcing local and provincial authorities to spend the monies they generate from traffic law enforcement fines on road safety instead of “keeping rates and taxes down” as Chief Z Nyanda claims the purpose of traffic fines is. By “proper traffic calming engineering solutions” we are NOT referring to the useless “mini circles” some bright spark decided to introduce, but proper roundabouts, raised intersections, speed humps, etc.

7.8.1.4.        Surprisingly, whilst the Department of Transport seems to be so fixated on speed issues, it seems to have no regard for speed differentials on freeways which can and often do lead to serious crashes. We therefore urge you to:

7.8.1.4.1.            Legislate, implement and enforce a MINIMUM speed limit of 80km/h on ALL freeways where the speed limit is 120km/h so as to minimise crashes which are caused by the speed differentials by vehicles travelling in the same direction on freeways.

7.8.1.4.2.            Introduce MINIMUM speed limits of at least two thirds of the speed limit applicable to any other road commonly called a “freeway” or a dual carriageway separated by a centre median and upon which there are off-ramps.

8.    Insertion of regulation 318A in the Regulations

This proposed insertion reads as follows:

 “318A. Prohibition of operating on the public road of a goods vehicle the gross vehicle mass of which exceeds 9 000 kilograms at certain times

(1) No person shall operate on the public road in an urban area a goods vehicle the gross vehicle mass of which exceeds 9000 kilograms between the hours of 06h00 to 09h00 and 17h00 to 20h00 Monday to Friday except weekends and public holidays.

(2) The provisions of subregulation (1) shall not apply in case of emergencies, to the driver of a fire -fighting vehicle, a fire-fighting response vehicle, an emergency medical response vehicle, a rescue vehicle or an ambulance, who drives such vehicle in the performance of his or her duties, a traffic officer or a person appointed in terms of the South African Police Service Act, 1995 (Act No.68 of 1995), who drives a vehicle in the carrying out of his or her duties, any person driving a vehicle while responding to a disaster as contemplated in the Disaster Management Act, 2002 (Act No. 57 of 2002) or a person who drives a vehicle while it is used in connection with the construction or maintenance of a public road or the rendering of an essential public service.”

8.1.  In the ideal world, as it is in many parts of Europe, the USA, etc. this proposal would constitute a no-brainer and South Africa would be more than justified in banning extra heavy goods vehicles from urban areas and freeways during these times in order to improve traffic flow during rush hours and to remove the risk of crashes involving heavy goods vehicles occurring in urbanised areas if South Africa was part of that Utopian, ideal world.

8.2.  Unfortunately however, South Africa is not part of the ideal world, not even by a long shot.

8.2.1.    The vast majority of freight in South Africa and goods on its supermarket shelves are conveyed on our roads due to the fact that the rail network has been so severely neglected and mismanaged by the Department of Transport for a long time now.

8.2.2.    Road freight vehicles are currently targeted by hijackers who target – in some cases – the vehicles themselves, but in most cases, the cargo they are conveying.

8.2.3.    Whilst a heavy goods vehicle is in motion – even if it is in heavy traffic, it is a more difficult target to hit, however, the second one stands still, it becomes a sitting duck for armed and often violent criminals who will stop at nothing to steal the cargo it is conveying.

8.2.4.    Truck stops in general and secure ones in particular are few and far between and few, if any are situated anywhere close to urban areas. Therefore, should such a provision be promulgated it can be concluded that these vehicles will have to stop on/beside public roads in urban areas for the six hours of each day this provision seeks to impose upon them.

8.2.5.    Even if a heavy goods vehicle were to manage to reach its destination at a shopping centre by 06:00 it would have to park at the side of the road at the entrance to that shopping centre and wait until 09:00 before it could move a single centimetre to offload its cargo.

8.2.6.    The backlog caused by this anomaly would have a massive knock-on effect on all goods vehicles making deliveries to such shopping centres and it is debatable whether this would be cleared before 17:00 when the next round of banning on operation occurs, thereby causing the remaining heavy goods vehicles to have to wait until 09:00 the following morning before they can offload their cargo.

8.2.7.    It must also be remembered that if a heavy goods vehicle is still on the premises of the shopping centre it is making delivery to by the time 17:00 comes around, it will have to stay put until 20:00, thereby blocking any other deliveries by heavy goods vehicles with a GVM of less than 9,000kg since such lighter vehicles wouldn’t be able to enter the premises.

8.2.8.                Furthermore, the introduction of this regulation will cause a huge lowering of efficiencies in the movement of goods in South Africa, which will in turn result in significant cost increases in the transportation sector. We therefore need to question whether the Department of Transport has even considered this, never mind calculated the impact on inflation this will bring about.

8.3.  Recommendations

8.3.1.    In light of the forgoing, it is our recommendation that the Department of Transport scraps this provision until such time is it can demonstrate that it has constructed, equipped and adequately secured sufficient truck stops situate in urban areas in order to cater for the trucks it intends bringing to a standstill in urban areas.

9.    General comments and recommendations

9.1.  Most, if not all of the proposed amendments in this gazette completely ignore the very real practicalities and unintended consequences of imposing such provisions. They also completely and irresponsibly ignore the fact that corruption and crime is out of control on South Africa.

9.2.  It has been said by some in the Department of Transport that “desperate times call for desperate measures”. We strongly disagree and hold the view that “desperate times call for level heads, proper strategies, the proper implementation of effective remedial measures and thorough and effective evaluation of any counter-measures introduced to address the foregoing”. None of these attributes are being demonstrated by the Department of Transport, which additionally appears to be acting like a bunch of desperados.

9.3.  It’s way too convenient to assert that “laws provide the framework for enforcement” when the single largest elephant in the room is the fact that proper and effective traffic law enforcement is and remains little more than a pipe-dream in South Africa and corruption is quite literally, out of control.

9.4.  Justice Project South Africa respectfully requests that the Minister and Department of Transport ceases publishing ridiculous notions as proposed legislative changes forthwith so as to cease consuming so much of our time, at no cost to you, in lodging our comments and submissions to you in an attempt to avert the dire consequences of your poorly considered, ill-advised proposed amendments will without any shadow of a doubt cause.

9.5.  If any of the proposed amendments contained in government gazette 38772 actually get promulgated, the Minister and Department of Transport must expect that affected parties will be left with no choice but to consider approaching the Courts in order to prevent the massive, reckless damage and prejudice that will result from these provisions becoming law.

Yours sincerely; towards safer roads and Justice for all who use them,


Howard Dembovsky
National Chairperson
Justice Project South Africa

 

 

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