JPSA's comments on the National Road Traffic Amendment Bill, 2015

On 28 January 2015, the Department of Transport released for public comment, the National Road Traffic Amendment Bill, 2015 in Government Gazette 38429.

As is usual when amendments to road traffic (and sometimes other) legislation are published for public comment, Justice Project South Africa considered the contents of the draft Bill carefully and submitted its comments, representations and recommendations to the relevant persons at the Department of Transport. 

In the interests of transparency, we always publish the comments we submit on draft legislation on the internet. This is not done to embarrass anyone or to blow our own trumpet. It is done because we feel that everyone has the right to see what we are saying and doing.

Below is the exact wording of our submission. If you wish to download the PDF version of this document so you can read it offline at your leisure, click here.


Ngwako Thoka and John Motsatsing
Department of Transport
Private Bag X193
PRETORIA
0001

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

Your Ref: PUBLICATION FOR COMMENTS: NATIONAL ROAD TRAFFIC AMENDMENT BILL, 2015
Our Ref: GG
38429 Comments

Friday, 27 February 2015

Dear Sirs,

NATIONAL ROAD TRAFFIC ACT, 1996 (ACT NO.93 OF 1996)
PUBLICATION FOR COMMENTS: NATIONAL ROAD TRAFFIC AMENDMENT BILL, 2015

1.    We refer to the draft amendments to the National Road Traffic Act tabled in Notice No. 77 of 2015 in Government Gazette No. 38429 of Wednesday 28 January 2015 entitled the “National Road Traffic Amendment Bill, 2015”.

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

1.2.  We wish to place on record our disappointment that, despite the many man-hours we put into making representations on the contents of the proposed amendments contained in government gazette 35528 – Notice 575 of 2012, and what was then called the “National Road Traffic Amendment Bill, 2012”, which dealt with much the same subject material content contained in the current version, our effort has amounted to practically nothing, since most of our comments have clearly been ignored.

2.    Section 1 – Definitions

2.1.  We note with alarm that the use of the word “accident” continues to form part of the vocabulary used in the National Road Traffic Act. This is in stark contrast to international practice and is not helpful in promoting an atmosphere of road safety where people come to realise that very few collisions can be described as “an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury” and can also be interpreted to mean “an event that happens by chance or that is without apparent or deliberate cause”. By stark contrast, the word “collision” means “an instance of one moving object or person striking violently against another”.

2.1.1.    By its very definition and meaning, the word “accident” precludes any negligence on the part of a driver whereas the word “collision” neither precludes nor presumes negligence but properly describes what happens when a crash occurs.

2.1.2.    While it may sound like a matter of semantics, the language we use is very important to the perceptions ordinary people hold and trivialising the seriousness of situations where collisions occur is not helpful in attaining the objectives of promoting road safety.

2.1.3.    Additionally, the Act contains (in Section 63) an offence called “reckless or negligent driving”. A person who causes a collision due to operating a motor vehicle in a reckless or negligent manner cannot be described as having done so “accidentally” since both of these words require mens rea, or the intent to act in such a manner.

2.1.4.    Additionally, there have been multiple instances where people have been charged with and convicted of murder after causing a collision that results in the death of other persons. Murder can never be “accidental” since by its very nature, the term means “the unlawful intentional killing of one human being by another”. Similarly, the term “culpable homicide” means “the unlawful killing of one human being by another”, without the requisite intent to do so.

2.1.5.    While the word “accident” has indeed been widely used for decades when describing collisions, this should not be viewed as a reason or excuse not to alter the terminology we use. The word “automobile” was also popular at one stage and this word has been changed to “motor car” or just “car” to better suit modern language.

2.2.  It is alarming and somewhat worrisome that despite repeated requests on our part that such a definition is inserted into the Act, as yet the word “emergency” has still not been defined. This is particularly concerning in light of the fact that a definition does exist for an “emergency vehicle”.

2.2.1.    This has a profound and severe impact on numerous provisions in the Act, wherein various “authorised persons” openly violate the provisions of the Act in non-emergency situations simply because they are afforded immunity from prosecution should they choose to violate the Act; simply because they feel like doing so.

2.2.2.    It cannot be deemed as reasonable that any such authorised person is simply allowed to engage their warning lamps and sounding device should they been late for a meeting, going to buy food, etc.

2.2.3.    It is our recommendation that the following definition be inserted into Section 1 of the principle Act:

“emergency” means a situation where:
(a) death or serious injury has occurred;
(b) there is a risk of death or serious injury occurring;
(c) traffic flow has been severely impacted as the result of a collision or incident;
(d) there is a clear risk of loss or damage to property; or
(e) a serious violent crime has been or is in the process of being committed; and

delaying a response thereto will compromise the safety and security of the persons or property concerned.

2.2.4.    It is our recommendation that all references to the word “accident” be removed from the National Road Traffic Act and replaced with the word “collision”.

2.3.  We agree with the insertion of the definition for “incident” as proposed, except that we feel that the word “accident” is inappropriate for the reasons outlined supra.

2.3.1.    We would therefore recommend that this definition is altered to read:
"incident" means an extraordinary condition or event which results in a reduction in road capacity or creates a hazard for road users for a sustained period of time, which includes a minor [accident] collision, shoulder or lane obstruction, rail or aviation [accident] crash, a leakage or spilled load;

2.4.  The proposed amendments to the definitions of various categories of licenses contained in the Act are somewhat bizarre and nonsensical.

2.4.1.    The proposed amendment says:
A licence authorising the driving of a motor vehicle shall be issued by a driving licence testing centre in accordance with this Chapter and shall be –
(a) a [provisional] licence, to be known as a learner's licence;
(b) a licence, to be known as a provisional driving licence, or
(c) a licence, to be known as a driving licence,

and, except as otherwise provided in this Chapter, no person shall be examined or tested for the purpose of the issue to him or her of a driving licence unless he or she is the holder of a learner's licence.".

2.4.2.    All that is required to define the three types of licence would be to state that:
A licence authorising the driving of a motor vehicle shall be issued by a driving licence testing centre in accordance with this Chapter and shall be known as –
(a) a learner’s licence;
(b) a provisional driving licence; or
(c) a driving licence,

and, except as otherwise provided in this Chapter, no person shall be examined or tested for the purpose of the issue to him or her of a provisional driving licence unless he or she is the holder of a learner’s licence.

2.4.3.    Please take note of the recommended change of the wording in the trailing paragraph of this definition since it has particular relevance with respect to the published draft regulations contained in gazette no. 35413 of 8 June 2012 wherein the regulations applicable to provisional driving licenses were contemplated.

2.5.  We note with interest that the phrase “motor vehicle” is to continue to include a “trailer” in its definition of a motor vehicle, despite the fact that a trailer can never be described as being “self-propelled”. This is somewhat nonsensical and it is our assertion that a trailer cannot be defined as a motor vehicle.

2.5.1.    Furthermore, the word “trailer” is separately defined in the Act as follows:
“trailer” means a vehicle which is not selfpropelled (sic) and which is designed or adapted to be drawn by a motor vehicle, but does not include a sidecar attached to a motor cycle;

2.5.2.    There therefore exists a direct conflict between the two definitions and common sense dictates that a trailer can never be self-propelled as it is specifically designed to be drawn/towed by a self-propelled motor vehicle or an animal.

2.5.3.    We therefore recommend that while amending the definitions, that the word “trailer” is removed from the definition of a motor vehicle since its inclusion is both contradictory and nonsensical.

2.6.  We note the amendment of the definition of a “testing station” wherein it is to mean “a testing station registered in terms of section 39 to examine and test a motor vehicle;”

2.6.1.    The grammar of this proposed amendment is incorrect and, in view of our comments about trailers, we recommend that it should read: “means a testing station registered in terms of section 39 to examine and test [a motor] vehicles”.

3.    Amendment to Section 3C(2)(a) and subsection 2(b) and the insertion of subsection 3(c)

3.1.  The proposed amendment to subsection 2(a) reads: “an examiner of vehicles if he or she, or through his or her spouse or partner, has or acquires a direct or indirect financial interest in the manufacturing, selling, rebuilding, repairing or modifying of motor vehicle”

3.1.1.    We feel that the term “spouse or partner” is not nearly limiting enough to ensure that an examiner of vehicles, or indeed, a traffic officer will act impartially when examining vehicles. believe this should be amended to read: “an examiner of vehicles, or a traffic officer if he or she, or through his or her spouse, partner or family member, has or acquires a direct or indirect financial interest in the manufacturing, selling, rebuilding, repairing or modifying of motor vehicles”.

3.1.2.    The reason we feel that a traffic officer should be included in this subsection is because he or she has the power to discontinue the use of a motor vehicle, or more importantly, not do so should his or her decision be influenced by a material interest in the condition of a motor vehicle.

3.2.  We recommend that subsection 2(b) should similarly be amended as follows: “an inspector of licences, an examiner for driving licences, [or] a traffic warden, a traffic officer or a NaTIS officer, if he or she, or through his or her spouse, partner or family member has or acquires a direct or indirect financial or other related interest in any driving school or in the training or instruction of or supervision of learner drivers”.

3.3.  We concur with the insertion of subsection (c) into the Act except for the fact that this provision should be amended to read “a traffic officer, traffic warden or NaTIS officer, if he or she, or through his or her spouse, partner or family member has or acquires a direct or indirect financial interest in a road transport services business.

3.4.  The closing paragraph in subsection (2) which reads: “Provided that the chief executive officer may register a person in terms of subsection (1) notwithstanding the provisions of this subsection” should be deleted since it completely negates the intended purpose of the provisions contained in subsection (2).

4.    Amendment of section 3E of Act 93 of 1996, as amended by section 2 of Act 21 of 1999

4.1.  We note the proposed insertion of subsection 1(e) and agree that it is essential that this provision comes into effect. We do however feel that limiting it to Schedules 1 and 2 of the Criminal Procedure Act, when the offences contemplated in Section 35 of the National Road Traffic Act are serious road traffic offences NOT contemplated in Schedules 1 and 2 of the Criminal Procedure Act is a gross oversight.

4.1.1.    Additionally, the crimes listed in Schedules 5, 6 and 7 of the Criminal Procedure Act are even more serious than the crimes listed in Schedules 1 and 2 of the Act and include crimes not listed in Schedules 1 and 2. Schedules 5, 6 and 7 and should therefore not be excluded either.

4.1.2.    Our recommendation is therefore that this provision should be amended to read: “such person has been convicted of an offence listed in Schedule 1 [or], 2, 5, 6 or 7 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) and/or an offence contemplated in Section 35 of the National Road Traffic Act”.

4.2.  The proposed insertion of subsection 1(f), (g) and (h) are in direct conflict with the proposed amendments in Section 3C(2) insofar as they exclude the provisions pertaining to spousal/family member involvement and additionally refer to “the nature and extent of which may be prescribed by the Minister”. They additionally do not address the involvement of a traffic warden, a traffic officer or a NaTIS officer in business ventures.

4.2.1.    It is also of extreme concern that this subsection (1) is applicable to the powers of “the inspectorate of driving licence testing centres or the inspectorate of testing stations” ONLY and therefore cannot address the conflicts that would arise from such persons as traffic officers, traffic wardens and NaTIS officers since the inspectorate of driving licence testing centres and the inspectorate of testing stations have no powers over such persons. This therefore creates a complete failure of law to provide the necessary mechanisms to deal with contraventions of the law by persons other than inspectors of vehicles or inspectors of driving licenses.

4.2.2.    Either it is going to be held that such a person may not acquire or hold a financial interest in such business ventures that would unduly influence his or her ability to act impartially or it is not. By including the term “the nature and extent of which may be prescribed by the Minister”, a mockery is made of the provisions in Section 3C(2) because it introduces uncertainty into the mix and thereby introduces a significant degree vagueness into legislation.

4.2.3.    Furthermore, the use of the discretionary word “may” is counter-productive to the purpose of forbidding corrupt practices.

4.2.4.    We would therefore recommend that this proposed amendments under Section 3E of the Act be amended to read as follows:

4.2.4.1.        By the substitution in subsection (1) for the words preceding paragraph(a) of the following words:
“The inspectorate of driving licence testing centres, [or] the inspectorate of testing stations, or the chief executive officer respectively, [may for the period that it deems fit] must, and in the manner prescribed, [suspend or] cancel the registration of an examiner for driving licences, [or] an examiner of vehicles, a traffic officer, a traffic warden, or a NaTIS officer if –”

4.2.4.2.        Subsections 1(f), (g) and (h) should be amended to read:
“(f) such person holds or acquires a direct or indirect financial interest in a road transport services business as set out in Section 3C(2)(a); ”
“(g) an examiner of vehicles holds or acquires a direct or indirect financial interest in the manufacturing, selling, rebuilding, repairing or modifying of motor vehicle as set out in Section 3C(2)(b); ”
“(h) the examiner of driving licences, a traffic warden, a traffic officer or a NaTIS officer holds or acquires a direct or indirect financial or other related interest in any driving school or in the training, instruction or supervision of learner drivers as set out in Section 3C(2)(b). ”

4.3.  In our view, the amendment to subsection (2) is not strong enough and provides for improper conduct to be condoned.

4.3.1.    In the first instance, the word “may” is a discretionary word and it should be replaced by a peremptory word, given the fact that any person engaging in the practices set forth in Sections 3C(2) and 3E(1) of the Act will have already established that such a person is inherently dishonest and is therefore not fit to act in the capacity for which they have been appointed.

4.3.2.    Any person who, knowing that the practices described in Sections 3C(2) and 3E(1) of the Act are forbidden and subsequently deliberately engages in them can only be described as an unfit person to hold such a position of authority and if their status is to be allowed to be “suspended”, as opposed to cancelled, this simply means that the person in question may temporarily “fix” the situation, only to go and re-engage in the same practice once their suspension period has been lifted.

4.3.3.    It is our assertion that the practices described in Sections 3C(2) and 3E(1) of the Act can only be described as constituting corrupt activities if people engage in them and therefore the intended purpose of including them is to forbid corrupt practices. Either we are serious about tackling corrupt practices, or we are not and therefore, if it is going to be allowed for a person who has engaged in corrupt practices to pick up where they left off when a suspension period is lifted, there is no purpose to forbidding these practices to start with.

4.3.4.    Giving the chief executive officer discretionary powers to decide whose powers should be suspended and whose should be cancelled is neither necessary nor fair. Additionally, referring to “the nature and extent of which may be prescribed by the Minister” is unnecessary as it introduces vagueness into the equation since it actually says “such a person may engage in a corrupt practice if the Minister says that the corrupt practice is just a little corrupt.”

4.3.5.    We would therefore recommend that the proposed replacement of subsection (2) be amended to read as follows:
“The chief executive officer [may for the period that he or she deems fit] must, and in the manner prescribed, [suspend or] cancel the registration of a traffic officer, traffic warden, inspector of vehicles, [or] inspector of licences, or NaTIS officer if any of the circumstances referred to in subsection (1)(a) to (h) exist.

5.     Omission of powers and duties of NaTIS officers in of Act 93 of 1996

5.1.  We note that despite such a person existing in the Act, the powers and duties of a NaTIS officer are not defined anywhere in the Act.

5.2.  Sections 3F trough 3I deal with the powers and duties of an inspector of licences, examiner of vehicles, examiner for driving licences and traffic officer respectively, but nowhere in the Act are the powers and duties of a NaTIS officer defined.

5.3.  It is our recommendation that these powers and duties should be defined.

6.    Omission of amendment to Section 3K of Act 93 of 1996

6.1.  There currently exists a situation where private estates, body corporates and homeowners associations are “enforcing” provisions of the National Road Traffic Act in contravention of the Act, despite not possessing the requisite status as local authorities.

6.1.1.    They do so by making the assertion that persons who contravene the provisions of the National Road Traffic Act are not contravening the provisions of the National Road Traffic Act but are contravening the “rules and regulations” of the estate, body corporate or homeowners association.

6.1.2.    In some cases, these entities go so far as to make the claim that offenders are only contravening the “rules and regulations” of the estate, body corporate or homeowners association and the National Road Traffic Act has nothing to do with the fines that they impose, despite them actually referring to the National Road Traffic Act, or in some cases, the former and now repealed Road Traffic Act of 1989.

6.1.3.    These fines are payable directly to the body corporate or homeowners association without any consideration to the applicable local or provincial authority, despite the fact that such alleged contraventions occur on roads that are defined in the National Road Traffic Act as “public roads” and the Act does not delegate powers to bodies corporate or homeowners associations to enforce the provisions of the Act.

6.1.4.    While Section 3K of the Act clearly defines it as an offence to impersonate an authorised officer or peace officer, the entities in question attempt to circumvent this provision by calling their personnel “safety officers”, etc.

6.1.5.    It is our recommendation that the Act should be amended in order to define it as an offence for any entity other than a local, provincial or national government authority to levy a traffic fine of any nature whatsoever, regardless of whether such an entity is claiming that in doing so they are “enforcing their rules and regulations” in isolation of the National Road Traffic Act.

6.1.6.    It is also our recommendation that the Act should be amended in order to make it clear that no matter what an entity chooses to call a person who issues “private traffic fines”, it is an offence for them to do so.

6.1.7.    As things stand, there is nothing to prevent the spread of this illegal practice into suburbs which are not contained in what is commonly known as “gated communities”. Any residents’ association could easily get together and draft an agreement between residents to the effect that they will establish their own private little police force and start fining people who drive down the road/s in their suburbs.

6.1.8.    To this end, we would recommend that the following provision be inserted into Section 3K of the Act:
(5) No person, entity, company or body may stop and/or issue a fine of any nature whatsoever to any motorists who contravenes any provision contemplated in this Act, whether such contravention is separately defined in any private “rules and regulations” or any other “contractual agreement” or not.”

6.1.9.    Section 89(2) of the Act should then be amended to include the contravention of Section 3K(5) as an offence for which the contemplated imprisonment term if convicted is six years.

7.    Amendment of section 5 of Act 93 of 1996, as substituted by section 3 of Act 8 of 1998 and amended by section 4 of Act 21 of 1999

7.1.  The proposed amended title of this section is incorrectly worded. It should read as follows:
“5. Registration of manufacturers, builders, body builders[,] and importers [, manufactures of number plates]”

7.2.  Subsection (1) is also grammatically incorrect and should read:
“(1) [The prescribed]Every manufacturer[s], builder[s], body builder[,] and importer[s][,] [and every manufacturer of number plates shall] must apply in the prescribed manner to the chief executive officer for registration as a manufacturer, builder, body builder or importer [or manufacturer of number plates], as the case may be.”;

8.    Amendment of section 8A of Act 93 of 1996

8.1.  The proposed amendments of this section will mean that testing centres operated by such State institutions as the South African Police Service and the South African National Defence force will neither be compelled to apply for the registration of such testing centres nor be forbidden from operating one which is not so registered.

8.2.  We cannot understand why this would be regarded to be a good idea and therefore recommend that it not be so amended.

9.    Amendment of section 13 of Act 93 of 1996

9.1.  As dealt with supra, the wording of the descriptive categories of licenses does not need to be preceded by “a licence to be known as”.

9.2.  Additionally, if persons are going to be issued with a “provisional driving licence” after completing a practical test it is nonsensical that a person will be tested again when they apply for their full driving licence. In fact, the provisions applicable to attaining a driving licence do not prescribe that a person who is issued with a provisional driving licence be examined again when they apply for their full driving licence.

9.3.  It is important to read and be mindful of the published intended regulations contained in gazette no. 35413 of 8 June 2012 wherein the regulations applicable to provisional driving licenses were contemplated in order to understand the processes that will become relevant when a provisional driving licence is introduced and we would urge you to refer to the said gazette.

9.4.  The wording of section 13 of the Act should therefore be as follows:
A licence authorising the driving of a motor vehicle shall be issued by a driving licence testing centre in accordance with this Chapter and shall be known as –
(a) a learner’s licence;
(b) a provisional driving licence; or
(c) a driving licence
and, except as otherwise provided in this Chapter, no person shall be examined or tested for the purpose of the issue to him or her of a [driving] provisional driving licence unless he or she is the holder of a learner’s licence. A driving licence, shall not be issued to any person unless the prescribed requirements pertaining to a provisional driving licence have been complied with.

10.  Amendment of section 15 of Act 93 of 1996, as amended by section 10 of Act 21 of 1999

10.1.              Subsection 15(1)(f)(vii) should be amended to read:
“(vii) any other disease or medical condition which is likely to render him or her incapable of effectively driving and controlling a motor vehicle of the class to which such licence relates without endangering the safety of the public: Provided that deafness shall not of itself be deemed to be such a defect;”

10.2.              The inserted subsection 15(1)(f)(viii) should be amended to read:
“(viii) any physical defect which is likely to render him or her incapable of effectively driving and controlling a motor vehicle of the class to which such licence relates without endangering the safety of the public: Provided that an appropriately treated physical defect shall not in itself be deemed to be such a defect;”

10.3.              The insertion of subsection (3) should be amended to read:
“(3) The chief executive officer shall if satisfied that the holder of the licence is competent to drive the class of motor vehicle concerned with the aid of glasses or contact lenses, an artificial limb or any other physical aid, issue or authorise the issuing of a new licence in the prescribed manner reflecting the conditions under which it is issued.”

11.  Addition of section 15A of Act 93 of 1996

11.1.              This proposed section is entitled “Disclosure of disqualification in respect of licence authorising driving of motor vehicle” but does not appear to deal with or compel the disclosure by any person of their said disqualification. Instead it inserts some nonsensical verbiage into the Act.

11.2.              In addition, Section 16 of the Act deals with the disclosure of disqualification in respect of licence authorising driving of motor vehicle, albeit that it prohibits the nondisclosure thereof.

11.3.              We therefore submit that the insertion of Section 15A serves no purpose other than to confuse issues.

12.  Amendment of section 16 of Act 93 of 1996, as amended by section 11 of Act 21 of 1999

12.1.              We note that subsection (1) is not included for amendment, despite the fact that it only refers to a learner’s and driving licence and not to a provisional driving licence. We therefore recommend that subsection (1) should be amended as follows:
No person shall, when applying for a learner’s, provisional or driving licence, wilfully fail to disclose any disqualification to which he or she is subject in terms of section 15”

12.2.              We note that subsection (3) is stated to be a replacement of that subsection but that it makes no mention of deleting subsections (3)(a) and (b). If these two subsections remain, they will make no sense in the absence of the words “in the case where the licence—”.

13.  Amendment of section 17 of Act 93 of 1996, as amended by section 7 of Act 64 of 2008

13.1.              The proposed amendment of subsection (6) is grammatically incorrect and makes no sense.

13.2.              We therefore recommend that it is amended to read:
“If a person has been found to have contravened subsection (4)(b), and during the investigation process, it is established that such person has obtained a learner's licence [during the investigation process] in respect of the said contravention, such licence shall be invalid.”

14.  Amendment of section 18 of Act 93 of 1996, as amended by section 12 of Act 21 of 1999, section 1 of Act 20 of 2003 and section 8 of Act 64 of 2008

14.1.              It is quite apparent that, despite the fact that it is the Department of Transport that wishes to introduce a “provisional driving licence” into the mix, it does not understand how doing so will change the processes involved.

14.2.              In brief, it is our understanding that the various processes in becoming a licensed driver will be as follows:

14.2.1.  Obtain a learner’s licence by successfully completing a theoretical test;

14.2.2.  Obtain a provisional driving licence, whereupon certain restrictions will apply, after successfully undergoing a practical driving test; and

14.2.3.  Obtain a driving licence after satisfying the conditions applicable to a provisional driving licence described in the National Road Traffic Regulations, without undergoing a further practical driving test.

14.3.              The understanding depicted above results from knowing the contents of the published draft regulations contained in gazette no. 35413 of 8 June 2012 wherein the regulations applicable to provisional driving licenses were contemplated

14.4.              Currently, the Act deals with the application for and issue of a learner’s licence and a driving licence BUT it makes NO PROVISION for the application for a provisional driving licence. None of the proposed amendments to the Act make any provision for the application for and issue of a provisional driving licence.

14.5.              This complete omission on the part of the legislators renders all proposed amendments to the National Road Traffic Act insofar as the introduction of a provisional driving licence null and void since, despite making multiple references to such a licence, the Act provides no way for a provisional driving licence to be applied for, let alone issued.

14.6.              Similarly, since the process of becoming a fully licensed driver will, with the introduction of a provisional driving licence mean that a person applying for a driving licence will not be in possession of a learner’s licence, the proposed amendments to Section 18 of the Act are invalid since no-one will be able to apply for a driving licence.

15.  Amendment of section 20 of Act 93 of 1996, as amended by section 9 of Act 64 of 2008

15.1.              The grammar used in the insertion of subsection 1A is incorrect and should read:
(1A) The provisions of subsection (1) shall [not] no longer be applicable on a date fixed by the Minister by notice in the Gazette”

16.  Amendment of section 25 of Act 93 of 1996, as amended by section 15 of Act 21 of 1999

16.1.              The proposed amendment to subsection (1)(a) fails to acknowledge the intended introduction of a provisional driving licence. It is our recommendation that it should be amended to read:
“of a learner's, provisional or driving licence issued in terms of this Chapter, a repealed ordinance or any prior law, is disqualified in terms of section 15 from holding [it] such licence, the chief executive officer shall cancel such licence; or”

16.2.              Subsection (1)(b) remains loosely worded and provides a potential for abuse, in spite of the proposed amendment. It is our recommendation that it should be amended to read:
of a licence referred to in paragraph (a) would constitute a source of danger to the public by driving a motor vehicle on a public road[,] and an affirmation or affidavit in respect of the circumstances relating to such source of danger is submitted to the chief executive officer, the chief executive officer may cancel or suspend such licence after fully satisfying himself or herself of the authenticity of the claims made in such affirmation or affidavit.

17.  Omission of amendment to section 28A of Act 93 of 1996 as inserted by Act 21 of 1999

17.1.              We note that Section 28A of Act 93 of 1996 as inserted by Act 21 of 1999 has not been amended to include the words “and graded” as contemplated in the amendment of Section 28.

17.2.              We would therefore recommend that Section 28A be amended to read:
“28A. Application for registration and grading as instructor”
“Any person desiring to be registered and graded as an instructor shall in the prescribed manner apply to the chief executive officer.”

18.  Amendment of section 28B of Act 93 of 1996, as inserted by section 17 of Act 21 of 1999

18.1.              As previously dealt with in detail, we feel that schedules 5, 6 and 7 of the Criminal Procedure Act as well as the offences contemplated in Section 35 of the National Road Traffic Act should be included in the disqualifying criteria. We would therefore recommend that subsection (1)(b) should be amended to read:
“has not been convicted of an offence listed in Schedule 1, [or] 2, 5, 6 or 7 of the Criminal Procedure Act 1977 (Act No. 51 of 1977) and/or has not been convicted of an offence contemplated in Section 35 of the National Road Traffic Act

18.1.1.  The exclusion of offences as contemplated in Section 35 of the National Road Traffic Act as a disqualifying criteria for a driving instructor is simply bizarre, given the fact that these are very serious road crimes and driving instructors coach potential new drivers on our roads.

18.2.              Since the title of Section 28 of the Act is to be amended to read “Instructor to be registered and graded”, it would make sense that all references to registration of instructors should read “registered and graded”. However, it would appear that this is not the case in the proposed amendments that have been published.

18.2.1.  It therefore follows that the insertion of subsection (4) should read:
“"(4) Any person desiring to be registered and graded as an instructor shall apply in the prescribed manner at a driving licence testing centre to the chief executive officer, in respect of one or more of the classes of motor vehicles for which a learner's, provisional driving licence or driving licence can be obtained.”

18.2.2.  Similarly, subsection (5) should read:
“(5) Upon receipt of an application for registration and grading as contemplated in subsection (4), the driving licence testing centre shall deal with the application as prescribed.”

18.3.              We also feel that it is noteworthy to mention that, despite the intended rigorous (over?) regulation of driving instructors and schools, no provision whatsoever is contained in the Act and Regulations for any learner driver to undergo a single lesson with a duly qualified, graded and registered driving instructor.

18.3.1.  The absence of any requirement of a learner driver to undergo any formal instruction whatsoever is not, in our view, conducive to producing safe drivers or enhancing road safety.

19.  Insertion of sections 28D, 28E, 28F, 28G and 28H in Act 93 of 1996

19.1.              In reading the amendments to the Act in a holistic fashion, it is our understanding that driving schools will have to be both, registered and graded. However, this requirement does not seem to have been fully replicated in the proposed amendments.

19.1.1.  The title of Section 28D should read:
“28D Driving School to be registered and graded

19.1.2.  The title of Section 28E should read:
“28E. Application for registration and grading of driving school”

19.1.3.  The title of Section 28G should read:
“Suspension or cancellation of registration and grading of driving school”

19.2.              The insertion of Section 28F appears to be incomplete insofar as the current practice of some provincial MECs goes.

19.2.1.  We understand that there are currently some MECs who are insisting on those wishing to register a driving instructor or school to be members of his or her chosen private driving school/instructors association. This is unconstitutional in itself since it violates Section 18 of the Constitution which guarantees freedom of association. Tackling the problem however is not as simple as it may appear to be and would require an interdict to be sought to prevent this anti-competitive and unconstitutional behaviour.

19.2.2.  We would therefore recommend that Section 28F should read:
On receipt of the application referred to in section 28D and on the recommendation of the inspectorate of driving schools, the MEC shall, if satisfied that the driving school concerned has met the prescribed requirements for registration and grading, register and grade such driving school in the prescribed manner, and give notice of such registration and grading in the Gazette, provided that no MEC shall compel the membership of any private association or organisation as a precondition to registration and grading.”

19.3.              We suggest that an additional subsection is added to Section 28H of the Act as follows:

19.3.1.  “(5) No person or family member thereof, authority or body appointed as an inspectorate of driving schools shall have any interest whatsoever in a driving school, whether such interest is a direct or indirect interest.

20.  Amendment of section 30 of Act 93 of 1996

20.1.              The title of Section 30 of the Act is grammatically incorrect and we would suggest that this is an ideal time to change it, since it is to be amended anyway. We recommend that the title should read:
“30. Use of [somebody's] someone else’s learner's licence, provisional driving licence or driving licence by another person prohibited”

21.  Amendment of section 32 of Act 93 of 1996 as amended by section 5 of Act 8 of 1998

21.1.              We note that whilst employing or permitting a person who is not licensed to drive is prohibited, the same is not true of a person who is required to have a Professional Driving Permit.

21.1.1.  In light of the fact that the RTMC has recently announced that 43.35% of (433,973) PrDPs have expired and not been renewed and the fact that in a high number of crashes involving Heavy Goods Vehicles it has been found that the drivers thereof have not been in possession of valid PrDPs, it follows that operators should be compelled to assure that their drivers have valid PrDPs. (https://www.arrivealive.co.za/News.aspx?s=0&i=14541&page=Close-to-half-a-million-freight-and-public-drivers-do-not-qualify-to-be-on-South-African-roads-says-RTMC)

21.1.2.  We would therefore recommend that an additional subsection be included in section 32 of the Act to prohibit operators from employing and/or allowing persons who are not in possession of a valid PrDP to drive motor vehicles for which a PrDP is a requirement as follows:(4) A person who is the owner or operator, or is in charge, or control, of a motor vehicle for which a professional driving permit is required shall not employ or permit any other person to drive that vehicle on a public road unless that other person is in possession of a current and valid professional driving permit applicable to the goods, passengers or dangerous goods conveyed by that motor vehicle.

22.  Amendment of section 33 of Act 93 of 1996

22.1.              As discussed under paragraphs 2 herein, the word “accident” should be replaced with the word “collision”. We therefore recommend that subsection (1) should be amended as follows:
“(1) If any person is charged with any offence in terms of this Act relating to the driving of a motor vehicle or a failure to stop after or report [an accident] a collision, he or she shall produce every licence and permit of which he or she is the holder, or a duplicate thereof issued in terms of this Act [if he or she is not in possession of the original,] to the court at the time of the hearing of the charge.”

22.2.              We note that subsection (2) has not been included for amendment and this omission is problematic. We recommend that subsection (2) be amended as follows:
“(2) (2) For the purposes of this section and sections 34 to 36, inclusive—
(a) “licence” means a learner’s licence, provisional driving licence or driving licence; and
(b) “permit” means a professional driving permit.

23.  Amendment of section 34 of Act 93 of 1996

23.1.              Section 34 of the Act is titled “Court may issue order for suspension or cancellation of licence or permit or disqualify person from obtaining licence or permit”.

23.1.1.  We question the existence of subsection (4) as it does not appear in our copy of the National Road Traffic Act, which is the latest available and we therefore cannot concur that this is a substitution since it appears to be an insertion.

23.1.2.  The proposed insertion of subsection (4) does not contemplate learner’s licenses, provisional driving licenses and permits or other categories of licenses. We would therefore recommend that subsection (4) should be amended as follows:
“(4) Where a court has issued an order in terms of subsection (1) (c) the registrar or the clerk of the court shall notify the MEC in the prescribed manner of such order and the MEC shall record such order in the register for [driving] licences and permits.”

24.  Insertion of section 53A in Act 93 of 1996

24.1.              We must and do object to the proposal that an MEC should be allowed to “delegate to any person any power conferred upon him or her in terms of this Act”.

24.2.              The powers vested in an MEC in terms of the National Road Traffic Act are significant and wide-ranging and if any delegation is going to be allowed such delegation must be properly defined and ensure that powers are not delegated to persons who are not suitably qualified to exercise those powers.

24.3.              We therefore recommend that this insertion NOT be allowed.

25.  Amendment of section 58 of Act 93 of 1996, as amended by section 15 of Act 64 of 2008

25.1.              We largely agree with the proposed amendments to section 58 of the Act, save for the fact that we assert that an additional subsection should be inserted into section 58(3) of the Act.

25.1.1.  To this end, we recommend that subsection (3)(d) should be inserted as follows:
(d) no person contemplated in this section shall disregard the directions of a road traffic sign which is displayed in the prescribed manner unless he or she is responding to an emergency or incident, disaster as contemplated in the Disaster Management Act, 2002 (Act No 57 of 2002), or is providing an escort to another vehicle responding to such emergency, incident or disaster.”

26.  Substitution of section 60 of Act 93 of 1996, as amended by section 16 of Act 64 of 2008

26.1.              We largely agree with the proposed amendments to section 60 of the Act, save for the fact that we assert that an additional subsection should be inserted into section 60 of the Act and that it is inappropriate to specify the general speed limit only since many road traffic signs impose a lower speed limit than the general speed limit to particular roads.

26.1.1.  There can never be a reason for the driver of any emergency vehicle to exceed the speed limit whilst not responding to an incident or an emergency. Given the fact that the single biggest focus on traffic law enforcement lies in speed enforcement, it is little short of bizarre to suggest that any driver of any emergency vehicle should be allowed to exceed the speed limit “in the execution of his or her duties”, which duties may not be of a life-threatening nature.

26.1.1.1.      We would therefore recommend that the following amendments be made:
“Notwithstanding the provisions of section 59, the driver of a [fire-fighting vehicle, fire-fighting response vehicle, a rescue vehicle, emergency medical response vehicle or an ambulance] an emergency vehicle who drives such vehicle in the carrying out 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 or any person [ issued with the necessary authorisation and] driving a vehicle while responding to a disaster as contemplated in the Disaster Management Act, 2002 (Act No 57 of 2002), may exceed the applicable [general] speed limit: Provided that-
(a) he or she shall drive the vehicle concerned with due regard to the safety of other traffic; [and]
(b) in the case of [any such fire-fighting vehicle, fire-fighting response vehicle, rescue vehicle, emergency medical response vehicle, ambulance] an emergency vehicle or any vehicle driven by a person [issued with the necessary authorisation] while such person is responding to a disaster as contemplated in the Disaster Management Act, 2002 (Act No 57 of 2002), such vehicle shall be fitted with a device capable of emitting a prescribed sound and with a prescribed identification lamp and such device shall be so sounded and such lamp shall be in operation while the vehicle is driven in excess of the applicable [general] speed limit;
(c) no person contemplated in this section shall drive any vehicle in excess of 30 kilometres per hour over the speed limit in an urban area or in excess of 40 kilometres per hour over the speed limit outside an urban area or on a freeway; and
(d) no person contemplated in this section shall exceed the applicable speed limit unless he or she is responding to an emergency, incident, disaster as contemplated in the Disaster Management Act, 2002 (Act No 57 of 2002), or is providing an escort to a vehicle which is responding to an emergency, incident or disaster.

27.  Proposed amendments to section 61 and 62 of Act 93 of 1996

27.1.              In light of the fact that we have recommended that the word “accident” be replaced with “collision”, it is recommended that title of these sections, as well as all occurrences of the word “accident” be amended to read “collision”.

28.  Amendment of section 65 of the Act 93 of 1996

28.1.              As you are aware, Justice Project South Africa submitted comments with respect to the proposed reductions to limits applicable to operating a motor vehicle under the influence of alcohol in AUGUST 2012 when amendments to section 65 of the Act were last published for comment on government gazette 35528 of 18 July 2012. That was two and a half years ago and the publication of the National Road Traffic Amendment Bill, 2015 bears testimony that no action has taken place since then. We hope that the National Road Traffic Amendment Bill, 2015 will not suffer the same fate.

28.2.              In essence, we have little objection to a complete ban on drinking alcohol prior to or while operating a motor vehicle, however, we have grave concerns about the practical implications of criminalising persons who may have a natural level of ethyl alcohol in their blood without having consumed a single drop of alcohol.

28.2.1.  The medical phenomenon of natural ethyl alcohol production in the human body is not new, nor is it the subject of urban legends and myth. Natural ethyl alcohol production in the human biology is well documented and can result from something as simple as the consumption of fruit, suffering from a yeast infection, etc.

28.2.2.  Endogenous ethanol production, as well as a condition known as “auto-brewery syndrome” is a medical fact of comprehensive research in some individuals and whilst this may be presented as a valid defence at the time that a person stands trial, this would not alter the fact that they would have been arrested, subjected to a blood test and charged with a crime they had not committed.

28.2.3.  In countries like the USA, such a defence would generally be less viable due to the fact that the “limit” in the USA is 0,08g/100ml, while levels of 0,008g/ml of blood sampled are not uncommon in sufferers of endogenous ethanol production.

28.2.4.  The proposal that it should be defined as an offence for any person to have any measurable level of alcohol in their blood creates a significant risk that persons who have consumed no alcohol whatsoever will be convicted of this offence.

28.3.              We are also concerned about the practical implications of criminalising persons who may have a small measurable amount of ethyl alcohol in a blood sample due to having consumed an “over the counter” medication such as two teaspoons of cough mixture, which scientifically, is not considered to be sufficient to cause any intoxication or impairment whatsoever but would produce a measurable reading of alcohol in a blood sample.

28.3.1.  Ethyl alcohol blood tests in South Africa measure the concentration of alcohol in a person’s blood to three decimal places. The risk of a person who has consumed no alcohol whatsoever, or a person who has taken no more than the recommended dosage of an over the counter medication being convicted of this offence is therefore significantly high, since even a reading of 0,001g/100ml would be deemed as them being guilty of this offence.

28.3.2.  We are acutely aware of the fact that there are “over the counter” medications that are available, however it is not us that we are concerned about here, but an innocent person who may be suffering from a cough (or any other condition) who consumes the prescribed amount of medication and then finds themselves being convicted of a serious road traffic crime which imposes a lifetime of suffering due to the imposition of a criminal record.

28.4.              A hybridizing of effects as described at Alcohol's Effects from Virginia Tech University and Federal Aviation Regulation (CFR) 91.17: Alcohol and Flying (hosted on FlightPhysical.com) provides the following table to depict the physical effects of alcohol on human beings:


Progressive effects of alcohol

BAC (% by vol.)

Behaviour

Impairment

0.001–0.029

Average individual appears normal

Subtle effects that can be detected with special tests

0.030–0.059

Mild Euphoria

Concentration

Relaxation

 

Joyousness

 

Talkativeness

 

Decreased inhibition

 

0.060–0.099

Blunted feelings

Reasoning

Euphoria

Depth perception

Disinhibition

Peripheral vision

Extroversion

Glare recovery

0.100–0.199

Over-expression

Reflexes

Boisterousness

Reaction time

Possibility of nausea and vomiting

Gross motor control

 

Staggering

 

Slurred speech

 

Temporary erectile dysfunction

0.200–0.299

Nausea

Severe motor impairment

Vomiting

Loss of consciousness

Emotional swings

Memory blackout

Anger or sadness

 

Partial loss of understanding

 

Impaired sensations

 

Decreased libido

 

Possibility of stupor

 

0.300–0.399

Stupor

Concentration

Central nervous system depression

Breathing

Loss of understanding

Disequilibrium

Lapses in and out of consciousness

Heart rate

Low possibility of death

 

0.400–0.500

Severe central nervous system depression

Breathing

Coma

Heart rate

Possibility of death

Positional Alcohol Nystagmus

>0.50

High risk of poisoning

 

High possibility of death

 

 

28.4.1.  It was in light of the fact that generally, no level of intoxication or impairment whatsoever is present in the average individual at blood alcohol levels below 0,02g/100ml that we previously recommended that the “limit” should be lowered to read “below 0,02g/100ml”.

28.4.2.  A complete ban on any measurable level of alcohol in a blood sample is, in our view, reckless and will most certainly lead to a significant level of civil claims against various State institutions when, not if, people are wrongfully convicted – if indeed, anyone is convicted, given the current performance with respect to prosecutions for this offence.

28.5.              It is a proven worldwide phenomenon that the efficacy of anti-intoxicated driving enforcement campaigns depends heavily on the immediacy of punishment, rather than on lowering limits or imposing harsher sentences.

28.5.1.  South African road safety practitioners, as well as the Department of Transport and other authorities love talking about how successful Australia has been in tackling intoxicated driving, other traffic law enforcement and road carnage in general. Australia currently has a “limit” of 0,05g/100ml of blood sampled but, unlike South Africa, actually enforces the limit with veracity. As a result, the incidents of driving under the influence of alcohol in Australia are low and their road fatalities per 100,000 population were 5.6 per annum in 2012, compared to South Africa’s 31.9 fatalities per 100,000 population in 2011.

28.5.2.  According to the SAPS National Crime Statistics South Africa has seen 570,147 charges for driving under the influence of alcohol or drugs being recorded between 2004 and 2014, showing a steady and sharp increase in the incidence of charges being brought for driving under the influence of alcohol or drugs in that timeframe. Although we do not have access to the national figures on convictions for this offence, we do have access to the annual reports of the Road Traffic Infringement Agency and what is contained in the 2011/12 and 2013/14 annual reports can only be described as cause for major concern: