High cubes can officially be moved on South Africa’s roads for another year at a height of 4.6m after a last-minute exemption was gazetted in December. With a moratorium granting blanket exemption to regulation 224 (b) of the National Road Traffic Regulations, 2000 under the National Road Traffic Act (NRTA) of 1996 that limits the height of a vehicle transporting a high cube container to 4.3m officially lifted on January 1, the minister of transport, Blade Nzimande, granted a further exemption allowing for these containers to be transported at a height of 4.6m. This was gazetted on December 19 only a few days short of the lifting of the moratorium. In the gazette Nzimande states that in terms of section 75(1)(d) of the NRTA vehicles transporting ISO containers on national roads are exempt from the provisions of regulation 224(b) effective from January 2 this year until January 1 next year. “The moratorium is to suspend the application of punitive measures and calling on all law enforcement agencies to collect data of motor vehicles transporting ISO containers,” reads the notice. According to Quintus van der Merwe, a partner at Shepstone and Wylie, this means transporters are exempt from complying with the regulation and exempt from punitive measures. If the exemption had been granted purely on punitive measures, transporters and cargo owners would have been at risk of legal liability. Van der Merwe said he doubted this would be the case now, but said industry was best advised to make the necessary representations in the coming months or they would find themselves in the exact same position next year. Effectively, he said, it was just a year’s reprieve to transform their fleets to allow for ISO containers to be moved at 4.3m as the regulation itself had not been amended or changed and 4.3m remained the legal height restriction. “What is curious is the minister’s decision to make this exemption under section 75 which is the power of the minister to make regulations,” he said. “Section 81 handles the exemption of vehicles and loads from provisions of the Act.” In terms of section 75 the minister would be making a regulation or amending an existing regulation, but even though he said he was acting in terms of this section, he only made an exemption. This was ambiguous, said Van der Merwe, who did not rule out the possibility that it could have been a typographical error. From a legal perspective, however, it was a curious government gazette as it was uncertain exactly what the minister was doing. “Was his intention to amend the regulation or did he only want to exempt from the regulation. It seems that it was the latter but then it should have been done in terms of section 81.” He said the exemption also only applied to ISO containers. In the meantime, industry is hoping to meet with officials of the Department of Transport within the next two weeks to discuss the high cube situation. This comes after Nzimande appointed a task team, including both industry and government officials, to look into the matter and ensure a smooth transition when the 4.3m height restriction is implemented. A meeting scheduled for December was postponed and is expected to take place in Pretoria soon.
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If the exemption had been granted purely on punitive measures, transporters and cargo owners would have been at risk of legal liability. – Quintus van der Merwe
