JPSA's comments on proposed amendments to the National Road Traffic Regulations (Government Gazette No. 38997 of Friday 17 July, 2015)

Justice Project South Africa (NPC) has today dispatched its comments and inputs on the proposed amendments to the National Road Traffic Regulations published in Government Gazette No. 38997 of Friday 17 July, 2015.

In compliance with JPSA's policies on transparency and keeping its members and the general public at large informed of what it is doing, we publish herewith the contents of that document.


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
38997 Comments

Friday, 14 August 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. R. 607 of 2015 in Government Gazette No. 38997 of Friday 17 July, 2015.

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

2.    Amendment of regulation 25 of the National Road Traffic Regulations

2.1. We refer to our letter of Monday 27 July 2015 to the Department of Transport wherein inter alia we drew your attention to the fact that paragraph 3 of Notice No. R. 607 of 2015 in Government Gazette No. 38997 of Friday 17 July, 2015 made references to non-existent regulations under the SANRAL Act.

2.2. We confirm that on 28 July 2015, Mr John Motsatsing responded to us by email, wherein inter alia he confirmed that the “e-road regulations 2015” do not exist and that a correction gazette deleting paragraph 3 of Notice No. R. 607 of 2015 in Government Gazette No. 38997 would be issued.

2.3. We place on record that as of even date, which is additionally the closing date for public comment, NO SUCH CORRECTION GAZETTE HAS APPARENTLY BEEN PUBLISHED.

2.4. We further place on record that due to the “erroneous” nature of paragraph 3 of Notice No. R. 607 of 2015 in Government Gazette No. 38997 and Mr Motsatsing’s subsequent acknowledgement thereof and assertions thereon, Justice Project South Africa is NOT making any further comment with respect to paragraph 3 thereof, specifically with respect to the proposal to grant SANRAL the ability to place administrative blocks on the NaTIS system proposing withholding the issue of licence discs on the basis of outstanding e-tolls.

2.5. We trust that the Minister and/or Department of Transport will not attempt to promulgate any amendments to regulation 25 of the National Road Traffic Regulations in pursuance of the ab initio void nature of paragraph 3 of Notice No. R. 607 of 2015 in Government Gazette No. 38997.

2.6. We again reiterate that if/when the Minister, Department of Transport and/or the South African National Roads Agency (SOC) Limited does decide to publish such proposed amendments for comment, JPSA will most certainly be strenuously opposing any such proposed amendments.

3.    Amendment of regulation 32A of the Regulations

3.1. Subregulation (4) reads as follows:
“A NaTIS user whose information is correct on the NaTIS and who is not required to complete form NCP as contemplated in subregulation (3) may comply with the requirements of subregulation (1A) by updating his or her details on-line by accessing the website of the Department and providing the required information by confirming the required information, and electronically submitting the documents contemplated in subregulation (5) in the manner indicated on the website.”

3.1.1.   In light of the fact that the Department of Transport’s current website provides no such facility, we trust that if/when such a facility is made available, the Department will make it easy and user friendly for “users” to find, navigate to and interact with such a facility.

3.1.2.   We also trust that the Department of Transport has thought about and implemented practical measures to ensure that online security and compliance with the POPI Act are in place prior to the implementation of this facility.

This said, JPSA is in favour of adopting online services to assist members of the public instead of forcing them to endure what are often unpleasant interactions with licensing authorities and hopes that other online services will soon be made available by the Department of Transport.

3.2. Subregulation (5)(c) provides preferential treatment of persons who reside in informal settlements and/or rural areas which are not available to persons who do not. It reads as follows:
“a NaTIS user who resides at an informal settlement or a rural area, a letter with an official date stamp that is not older than three months from the ward councillor or local tribal authority confirming the postal and residential address of such NaTIS user or an affidavit confirming proof of residential address.”

3.2.1.   Whilst we are sensitive to the fact that informal settlements present a challenge insofar as they generally do not have utilities provided by a local authority or State institution and must therefore be catered for in a practical manner, the notion that an affidavit from a political representative like a ward councillor should only be available to such persons deviates from Section 9(1) of the Constitution of the Republic of South Africa, 1996 which holds that “Everyone is equal before the law and has the right to equal protection and benefit of the law”.

3.2.2.   It is our assertion that the provisions of subregulation 5(c) should either be available to all persons or to none at all since it is unlikely to withstand constitutional muster in its current proposed form.

4.     Insertion of regulation 32B in the Regulations

4.1.  Subregulation (2) states:
“In the case where the Director-General determines−
(a) that the particulars of the NaTIS user as contemplated in subregulation (1) differ in any of the databases contemplated in subregulation (1);
(b) that such particulars were recorded after the date the address on the
NaTIS was recorded, he or she must request the NaTIS user by sending a notice to the contact address recorded on the NaTIS and the contact address obtained from the database contemplated in subregulation (1), of the fact that the information on NaTIS and on the other data base differs and inform such user that he or she must update the details on such system within 21 days from the date of the notice, and that if such person fails to do so the Director-General will act in terms of paragraph (c); and;
(c) If the NaTIS user fails to comply with the requirements of the notice contemplated in subregulation (2), the Director-General may update the NaTIS with the address contemplated in subregulation (1) and such address shall be used for the delivery of all documents and notices in terms of the Act and any notice or summons in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), the South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998) or the Administrative Adjudication of Road Traffic Offences Act, 1998 (Act No. 46 of 1998).”

4.1.1.   We note that subregulation (2)(b) makes no reference to the method by which the Director-General must serve such a notification and appears to completely disregard all practical, real world issues surrounding the services of the South African Post Office.

4.1.1.1.       We further note that subregulation (2)(b) uses the term “sending a notice” as opposed to “serving a notice” which would be covered by Section 87 of the National Road Traffic Act, No 93 of 1996.

4.1.1.2.       Albeit that the practicalities of the appallingly bad levels of service being provided by the State run South African Post Office makes a mockery of both, Section 87(2) of the National Road Traffic Act, No 93 of 1996 and Section 30(2) of the Administrative Adjudication of Road Traffic Offences (AARTO) Act, 46 of 1998, it is our assertion that such an important notification should be served on the “user” as opposed to simply being dispatched by some undefined means with no tracking facility associated with it.

4.1.1.3.       We would further recommend that an SMS be dispatched to the “user” in question calling upon them to comply with their obligations under the National Road Traffic Regulations to keep their address details current on the NaTIS system.

4.1.1.4.       Funding for these requirements could easily be found in the R36.00 transaction fee charged on all NaTIS transactions, the purpose of which has not previously been explained and/or justified to be anything other than a stealth tax.

4.1.2.   We wish to warn the Department of Transport that address details contained in credit bureau databases can be as misleading as details contained in the NaTIS registry.

4.1.2.1.       This is due to the fact that people typically do not enter into credit agreements on a daily or monthly basis and some don’t enter into them at all. It would therefore be somewhat reckless to simply assume that address details contained in credit bureau databases are correct.

4.1.2.2.       It is noteworthy however to point out that SANRAL is included in the agencies which are set to benefit from the promulgation of a provision that includes making use of facilities prescribed under the National Credit Act, while SANRAL is specifically exempted from the provisions of that Act. In our view, its exclusion from having to comply with the provisions of the National Credit Act should equally exclude it from benefiting from its provisions, but we do realise that it the proposed amendments are applicable to the Department of Transport and not SANRAL directly.

4.1.3.   We note that regulation 32B repeatedly refers to an undefined entity called a “NaTIS user”.

4.1.3.1.       The only reference to such an entity called a anywhere in the National Road Traffic Act and Regulations appears under regulation 1D of the National Road Traffic Regulations which deals with the “manner of application for registration as a NaTIS Officer”.

4.1.3.2.       This implies that persons whose details are recorded in the NaTIS registry as vehicle owners, operators, licence holders, etc. are NOT in fact “users” of the NaTIS registry and therefore it is NOT their details which may be updated in any way by the proposed amendments.

All of this said JPSA has no fundamental problem with the NaTIS system being cleansed and people’s details being brought up to date, since it will benefit the Department as well as individuals who are currently prejudiced by the laziness and/or gross inefficiencies of licensing authorities who take little care in assuring that motorists’ details are up to date. We therefore support it, so long as it is done in a responsible manner.

We trust that our inputs will be carefully considered prior to promulgating any such amendments.

Yours sincerely,


Howard Dembovsky
National Chairperson
Justice Project South Africa (NPC)
 


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