Euphoria over the high cube reprieve may very well be shortlived. Legal experts who have perused a statement issued by the Minister of Transport, Blade Nzimande, after an emergency meeting in Cape Town earlier this month told FTW that nowhere was there any commitment to changing the 4.3m height regulation and industry had essentially only gained itself another 12 months of moving containers at 4.6m.
Regulation 224 (b) of the National Road Traffic Regulations limits the height of a vehicle transporting a high cube container to 4.3m. According to Quintus van der Merwe, a partner at Shepstone and Wylie, there are serious implications and consequences that flow from the statement made by the minister following the meeting.
“The genesis of the so-called moratorium that has been in existence since 2011 is that the minister granted an exemption in terms of Section 75(1)(d) of the National Road Traffic Act, 1996. What the Minister has now done, purportedly by agreement of industry, is to terminate that exemption from the end of December notwithstanding the overwhelming representations that have been made to the DoT in recent months. The exemption will therefore terminate and instead of the exemption the Minister will simply not enforce the law for a period of one year,” he said. The net result of this, said Van der Merwe, was that there was now no exemption going forward and prima facie the transportation of high cubes would be contrary to the law.
“The statement issued speaks about minimising the impact when the present moratorium expires, facilitating a smooth transition in 2020 and that the task team will report progress to the minister.” Whilst the minister has appointed a task team and called for research on the issue from the CSIR, Van der Merwe said from the statement there was seemingly no intention to change the height restriction of 4.3m. Malcolm Hartwell, a director at Norton Rose Fulbright, agreed saying come 2019 there was no longer an extension to allow 4.6m loads. “Essentially all industry has is a promise that they will not prosecute transporters moving high cubes at 4.6m,” he told FTW.
Hartwell said it was baffling that the minister had opted to place a moratorium on the application of punitive measures when he could simply have just suspended the application of the particular regulation for a further year. Both Van der Merwe and Hartwell said it was important to understand that the current moratorium on high cubes was not being extended and that moving a container at 4.6m would be illegal, just not punishable for one year. “On the one hand industry has bought itself another 12 months to try and convince the minister to change the height regulation to 4.6m,” said Hartwell.
Both lawyers agreed that there was not a lot of clarity following the meeting and industry was best advised to seek it. Said Van der Merwe, “It begs the question whether the minister can competently refuse to enforce the law and if this was in fact pointed out to him, and whether industry could now raise estoppel against the authorities if the law was to be enforced. It is also unclear how far the non-enforcement of sanctions goes – does this mean that you can transport the high cubes without being fined or does it mean that you may be stopped, but you will not be fined?”
He, like Hartwell, said the issuing of a new moratorium while lifting the old one made no sense. Van der Merwe said from a legal point of view industry’s ability to call on the minister to grant a further exemption, or even better, to argue for an amendment to the regulations to provide for a permanent exception to the height limit for high cube containers had in all probability taken a knock.
“There is a significant difference between a scenario where the minister is called upon to grant an exemption as provided for in the act, and the scenario that apparently now prevails where the minister simply says he will not enforce punitive measures – assuming he is able to validly give such an undertaking,” he said.
“In my view, industry has inadvertently taken a massive step backwards and is going to now be hard pressed to recover the lost ground. A sensible approach is required to seek a long-term solution over a problem that really should not be a problem at all.”
From the minister’s statement there is seemingly no intention to change the height restriction of 4.3m. – Quintus Van Der Merwe
Industry has bought itself another 12 months to try and convince the minister to change the height regulation to 4.6m. – Malcolm Hartwell
