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.”