Is industry giving up on government engagement?

Against a background of
escalating regulation in the
freight industry, litigation
against legislation is fast
becoming common practice in
South Africa.
Speaking to FTW recently
on the sidelines of the Road
Freight Association’s annual
conference in KZN, the
organisation’s CEO, Sharmini
Naidoo, said there was genuine
concern that the consultative
process was nothing more
than procedural and if
business had real concerns
they had no other option but
to take it up in court.
“We have been told by
government in various forums
that they will legislate as they
see fit. Recent proposals and
legislation that have been
adopted show this. It is a sign
of what is to come,” she said.
“We are seeing legislation that
has already been decided on
from the get go being proposed
and implemented – and no
matter how much public
comment is leveraged it makes
no difference. If we want to
change it we have to litigate
often in the highest courts in
the country.”
And litigation is expensive,
adding further costs to
an already cost-strapped
industry.
At the RFA conference
several operators said they
saw no point in commenting
on the latest government
proposal to ban trucks from
the roads during peak hours
saying it was just using
resources and would
not have an impact
as government had already
decided what they were going
to do.
“It will be cheaper for us to
just go straight to court,” an
industry source told FTW.
But RFA spokesman Gavin
Kelly said it was not optimal if
associations across the board
had to go to court to stop
restrictive legislation all the
time.
“We simply cannot as a
country afford to litigate every
piece of legislation. And that
is now becoming the trend.
It is an extremely worrying
situation.”
Whilst there are several
examples in the road freight
sector where the RFA has had
to turn to the courts to prevent
or address legislation that
did not take public comment
into consideration – including
e-tolling and the payment
of cross-border tariffs – it’s
a trend that is being seen by
other role-players as well.
An industry expert who has
been involved in commenting
on the rules and regulations
guiding the new customs
acts told FTW they were
now making changes to the
legislation that had already
been brought up in the public
commentary stage years ago.
“It’s as if they were just
not there,” he said. “During
the public commentary we
brought up several issues
saying it would not work in
practice, but the legislation
was drafted, promulgated and
here we are several years later
commenting on the rules and
regulations, making the very
same comments we made
then. Why? Simply because lip
service was paid to what we
were saying. The fact that it
was not practical to implement
these procedures five years ago
has not changed.”
Naidoo said it seemed as
if the consultation process
around legislation and
regulation was nothing but a
regulatory process.
“It would seem that there
is no obligation to justify it or
even to consider stakeholders'
concerns even though there is
a process in place.”
E-tolling in Gauteng
remains one of the top
examples of government not
taking the public’s voice into
consideration, says Cape
Town mayoral committee
member for transport, Brett
Herron. “Which is why we
are vehemently opposing
tolling in Cape Town because
it is very difficult to bring
about change once it all takes
effect.”
He said more often than
not parties were finding
themselves in positions where
all avenues had been explored
and legislation remained the
only option.
“Definitely in Cape Town
that has been the case with
tolling. We have now been
in litigation with Sanral for
years and we still have a long
road to go.”