High-cubes get the nod

The Department of Transport
has finally committed itself
to a moratorium on high cube
containers effective until January
1, 2019.
The blanket exemption –
gazetted last week – applies to
all ISO containers where the
overall height of the vehicle
exceeds 4.3 metres, effectively
giving truckers the right to carry
the previously illegal high cube
containers.
While the wording of the
ruling has ignited lively industry
debate, Quintus van der Merwe,
partner in lawyers Shepstone &
Wylie and one of FTW’s legal
advisers, provides some context
for the issue and the empowering
legislation.
“In brief,” he told FTW, “there
has been a long-standing dispute
regarding the transportation
of high cube containers (2.9 m
high). When transported on
the back of a normal transport
vehicle, the height of the load
exceeded the maximum height of
4.3 m prescribed by law.
“For years the maximum
height of 4.3 m specified in
Regulation 224 of the Road
Traffic Act was not enforced.
However, around December
2009, the Kwa-Zulu Natal
department of transport started
enforcing the height restriction.
This led to a massive outcry
from shipping lines, the Road
Freight Association (RFA) and
the SA Association of Freight
Forwarders (Saaff), after a
number of trucks carrying high
cube containers were pulled off
the roads by the traffic police
and impounded. The effect of
the restriction was that high
cube containers could only be
transported on low bed trailers
– which were generally in short
supply and expensive.”
Referring to the recently
published exemption, Peter
Newton, director of Seaboard,
and a recognised voice in the
freight industry, commented in a
notice distributed to the industry:
“The publication of this
remarkably inept document
unleashed a torrent of scathing
comment. We did not ask for
an unlimited height exceeding
4.3 m, we asked for a max of
4.65 m (same as double-decker
buses). But the way the gazetted
moratorium reads, ‘overheights’
are exempt too.”
But that’s not the end of the
story, he added.
According to his legal
advisers, it was pointed out the
exemption as it stood was ultra
vires (unlawful) for a number
of technical reasons – which
FTW cannot detail due to space
constraints.
Turning to the empowering
legislation, Van der Merwe points out that: Section
75(1) of the National Road
Traffic Act, 1996, provides
that the Minister may
after a decision has been
taken in the Shareholders’
Committee make
regulations not inconsistent
with this Act, in respect of
any matter.
“It is probably premature
to make any conclusive
remarks without careful
consideration. But one
certainly might query
whether a decision has been
taken at the Shareholders’
Committee, and whether
the exemption is not
inconsistent with this Act.
“It is also questionable
whether the minister can
actually grant an exemption.
Regulation 224 does not
provide a basis for any
exemption, and if indeed the
minister is entitled to grant
exemptions, then reference
should have been made
to whatever empowering
legislation allows this.”
The RFA meanwhile has
welcomed the moratorium
but has vowed to continue
its fight for blanket
exemption beyond 2019.
And this is in line with
Van der Merwe’s contention.
“In my view,” he said,
“the RFA would do well to
engage with the DoT to raise
their concerns why there
needs to be a maximum
height in place rather than
criticising the authorities,
who, it would appear, have
tried to enact legislation to
give effect to the request by
the RFA and others.”