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.”
