The responsibility of the private motorist for operation of his vehicle is clear and simple, but for commercial vehicle operations(s) responsibility for safety cannot always be traced to an appropriate competent person. In line with international practice and that of South African factories, mines and works, it is intended to introduce the concept of responsibility vested in registered professionally competent person in the South African road transport industry. This paper describes the background and elements of a road transport operators licencing system.
The growth of transport has been extremely rapid over the last two hundred years. The development of canal, sea, rail, road and more recently air transport has closely paralleled and, perhaps made possible the growth of our technically oriented industrial society.
In that transport implies movement and that bodies in motion require control, perhaps it is not surprising that the development of transport has been attended by the introduction of innumerable laws, acts, statues and regulations in every country of the world. Ever since the first two carts collided on a muddy track, and the ruler ruled, “KEEP LEFT”, men have been trying to regulate relationships between transport agencies and between transporters and the public.
Road transport, more than any other mode, has received the attention of the law makers to the extent that it is worth analysing the characteristics of this mode to establish the rationale for the seemingly endless worldwide debates about road transport legislation.
In attempting an analysis of road transport characteristics we must take cognizance of the many different agencies in the “road transport mode”. The term, in its widest sense, covers the teenager on his motorbike, the long distance luxury coach, the municipal refuse truck and the intercity linehaul freight rig, as well as the private motorist and cyclist.
These road transport agencies have all or some of the following characteristics in common:
Road Space: Road transport operates on road space that is the property of some other person, organisation or body (public or private) in dynamic co-operation with all other users of the roads, thereby giving rise to a continually changing series of legal rights and duties between parties and transporter, as movement takes place.
As the law of delict, for breaches of generally imposed legal duties, is applied to acts of willful negligence or unlawful aggression ab extra, that is to say independent of the will of the parties, the transporter operates within a constantly changing framework of legal liability, often beyond his personal control.1 By contrast the business that operates within its own property has relatively static relationships with the world at large.
Liability for goods or freight in transit
All transporters may be held liable for the safety of passengers and property in transit in respect of their own omissions and commissions (and those of their servants).
For the commercial haulier it would appear that the strict liability imposed by the Roman Praetors edict, de nautis, cauponibus et stabulariis (i.e. concerning mariners, innkeepers and stable keepers) is to be applied to road transport in South Africa by a succession of judgments over the years, unless the transport has specifically contracted out of liability.2 The transporter cannot however, contract out of liability for willful misconduct, or gross negligence.3 The law therefore imposes extraordinary responsibility for goods and to a lesser extent of different regulations to carriers of own goods and those who ply for reward. Justification for the continuance of the distinguishing restraints on the “piratical impulsivity” of the public carrier is however debatable in this day and age.
Ease of access and exit
The ease with which anyone may start or stop transporting goods (or people) is self evident. Any man with a “balkier” can transport furniture for his neighbours or convey them personally wherever they may wish to go. In the absence of legal restraints there are few other barriers to the road transport market.
The market is highly price elastic and not very discriminating for most commodities. Pricing is also complicated by the differing values given to different aspects of service, e.g. customers may attribute higher value to speed of service than to improved vehicle maintenance, with attendant increased safety.
In the absence of any legally imposed liability, it is equally simple to stop transporting. The vehicle is simply left in the garage, leaving the customer to walk, or to find another transporter.
The machinery of road transport is designed for simplicity of operation, although it is technically sophisticated, with the result that it is assumed that the ability to use the machinery is all that is needed for successful road transport operation. This erroneous proposition has been reinforced by the success of the relatively few operators who have survived to learn transport management the hard way, whilst those who failed, tend to be out of sight and out of the minds of all but those who were injured in the process.
After this very brief description of the characteristics of road transport which have given rise to the welter of regulations that currently impinge on the mode, it is appropriate to examine the nature and objectives of the controls which have been applied in different countries as a background to the discussion on legislation appropriate to South Africa.
- Types of Regulations
Regulation of road transport has tended to fall into two major categories viz. regulation for the achievement of commercial or economic objectives (so called quantity regulation) and regulation to achieve socio-political objectives such as road safety or environmental protection (so called quality or safety regulation).4
It is significant that the world saw a spate of economic regulation in the depression years of the 1930’s when over capacity and competition caused severe problems in the Transport Industry. The Motor Carrier Transportation Act, 1935 (USA), Road Traffic Act, (1930) U.K., and Road and Rail Act, 1933 (U.K.), all reflected the problems of those times.
Some thirty years later, in the 1960’s, there was a significant trend in the introduction or improvement of safety (or quality) regulation resulting in the Transport Act 1968 (U.K.), the establishment of the Federal Department of Transportation 1967 (U.S.) and perhaps the uniform Road Traffic Ordinance of 1966 (S. Africa). In Belgium the International Operator Licence was introduced in 1968, whilst France started licencing operators in 1966.5. The gathering impact of road transport on society has continued to generate reaction from authorities and environmentalists e.g. lorry bans (U.K.), delivery control (Germany) noise and emission standards, and speed limits.
Whilst it is not intended to discuss economic (quantity) regulation in this paper, it is necessary in any discussion of regulation in road transport to distinguish between the nature of the regulations and the objectives of control, as regulations may exert positive and/or negative influences in several areas. For example the German authorities contend that economic regulation (price and capacity control) is instrumental in ensuring safe and efficient service whilst French authorities feel that increased revenue does not result in improved vehicle maintenance.6 It is necessary to identify all the objectives of eh regulatory system so that a balanced, streamlined mechanism can be developed to control those aspects of road transport which continue to merit transport regulation are as follows:-7-8
Protection of customers
Industrial stability and efficiency
Protection of past investments
Recovery of infrastructure costs ECONOMIC
Development of international trade
Strategic transport capability
Protection of the environment SOCIAL
Improved standards of living
Regulation for economic/commercial objectives
Economic regulation in road transport has tended to take the form of restriction of the supply side of the industry and/or interference with pricing. Regulation of the total quantity of road transport (i.e. restricting size of the national fleet) or restriction of levels of activity (permits, quotas, certificates of convenience and necessity etc.) or the regulation of tariffs have at various times been applied by most countries to achieve combinations of the foregoing objectives usually in conjunction with some form of operator licencing system.
There has been much acrimonious debate about unnecessary interference with “normal” competition in road transport in all countries but the fact of the matter is that much economic regulation is designed to protect society, as well as enforcing “Marquees of Queensbury” rules in the transport industry.
Loclin9 sums up the U.S. views on economic regulation of road transport by saying, “undoubtedly regulation in some of its aspects has been too detailed, too restrictive, and annoyingly slow…but to hold that a laissez-faire policy would produce satisfactory results to the public appears to disregard the lessons of experience”.
Quality regulation (Safety regulation)
Quality regulation in road transport, rightfully speaking, affects all areas of the operation of road transport e.g. the road, the vehicles, the drivers, and the owner/operator of the vehicles, so that for completeness we will touch briefly on each of these aspects in order to put them into perspective in the overall picture.
The very term quality regulation, implies the establishment of standards, as quality, denotes “degree of excellence” (Oxford Concise English Dict). The setting of the standards is the work of experts in many disciplines, whilst the framing of regulations is the work of legislators, and the two need to work very closely together to ensure that the final regulatory package achieves the objectives intended. There is a need for co-coordinative authority to promote a systematic approach in achieving the primary objectives of quality regulation, which are:
Protection of road users e.g. – road safety
Protection of environment e.g. – pollution, noise
Protection of public e.g. – hazardous substances
Little needs to be said about the quality aspects of road design except to note that they are the subject of on-going research and that the designers need constant contact with the road transport industry as legislation e.g. axle mass limits, can dictate road design standards.
- New vehicles and components – The safety (quality) standards that are laid down for manufacturers of motor vehicles are a vital part of quality regulation in road transport. The U.S. Motor Carrier Safety Regulations, the British Construction and Use Regulations and our own Road Traffic Ordinances all stipulate dimensional and performance standards which are laid down by organisations like the S.A. Bureau of Standards (SABS). The minimum specifications for braking systems, lights etc, are imposed on manufacturers.
- Vehicles in use – In most countries there are regulations controlling the standards to which vehicles must be maintained by the user in order to ensure that the original design standards of performance are not seriously diminished through wear and tear. The British Goods Vehicle Testers Manual is an excellent example of systematized and reason for rejection clearly stated for each component area. A comparable publication is urgently needed for South Africa.
(a) New drivers – In almost all countries the drivers of vehicles are tested for proficiency before being licenced to drive on public roads. The fact that there is a test procedure should imply that:
There is a standardized proficiency test
The pass/fail criteria are known
The tests are appropriate for each vehicle type
The tests are comprehensive i.e. they cover aspects such as operation, legal obligations, safety, etc.
(b) Licence Control – In many countries e.g. U.K., licences must be renewed periodically. After age 60 years a medical certificate is required. Licences must be carried and produced on demand in many countries.
(c) Driver records – In various countries e.g., Australia, there are points systems in force which operate by recording and accumulating the demerits or penalty points incurred by each driver. When these are computer-linked to the relicencing system, it is possible to exert considerable influence on the individual. The successful application of this type of control does however, require high levels of surveillance, computer sophistication and centralized data processing.
For the private motorist where the vehicle condition and the driver behaviour are the responsibility of the same person, an efficiently operated licencing and penalty system can go a long way towards improving road safety, but for commercial operations it is vital to obtain some control over the organisation which operates the vehicles because safety in fleet operations is a management problem.
This can best be illustrated by referring to another mode of transport, international bulk tanker operation, where ill trained crews and reduced maintenance of safety equipment have resulted from the economically depressed trading conditions of the past ten years.
I quote “Despite amazing advances in safety systems and navigation technology …. between 1971 and 1981, ships were lost at the rate of one a day through, foundering catching fire, colliding, running around or simply vanishing”.
The article goes on to say,
……. “CUT PRICE” – Developing countries, many new to the business are expanding their fleets by leaps and bounds, often at the cost of safety ….. some (of these) nations do not have maritime legislation”.
….. John Joyce, secretary of the Tanker Accident Working Group says “Too many accidents happen because people at sea simply do not know what they are doing”.10
Some of these comments sound familiar to those involved with the South African road transport industry.
The editorial in the publication SA Road Transportation in January 1984 reads “South Africa’s Safety record is disgusting. And the heavy transport industry should be deeply concerned about that, because it is a major contributor to the situation…bad drivers…not giving requisite attention to driver training …. constant overloading …shortfall in safety standards ….lack of morality within the industry…..we need an 0 licence for operators”.11
The same publication, in an article describing a disastrous trucking accident points out that we have a horrifying “grey area” as regards legal responsibility for fleet operations occasioned by the fact that in South Africa, many regulations are preceded by the standard preamble “no person shall operate….” but there is no definition of an operator, with the result that it is inferred that the term OPERATOR must be the legally responsible person. This is in many cases patently inequitable and unsatisfactory when considering sub-standard maintenance, overloading, excessive driving hours, unsafe loads, inadequate safety precautions and host of other matters which are controlled by the other employees of the undertaking concerned.
In contrast to this, US Motor Carrier Safety Regulations say ….”no motor carrier shall permit, or require a driver….” in the preamble to each regulation12 and the British Transport Act 1968, Ch.73 Part V4,1 (b) (a). lays down the following stipulations …. “Conviction in relation to a goods vehicle of the holder of the (operator) licence or a servant or agent …. Contravening ….
- maintenance of vehicles
- limits of speed and weight laden
- the licencing of drivers…
and then, (Section 5)…… disqualified from holding or obtaining an operators licence”.13
The Regulatory Package
A survey of the regulations that have been applied to road transport as well as the stated objectives of various countries yields a matrix such that of Appendix 1, illustrating the objectives and the (possibly) appropriate regulatory measure.
It can be seen that quality and economic regulatory measures go hand-in-hand and that the registration, licencing and control of operators is almost fundamental to some of the objectives.
Appendix 2 is an analysis of the regulatory measures that apply in various countries, and whilst there is not complete uniformity, there is a clear indication that, road transport regulation is international and that control of operators is widely endorsed.
The report of the Foster Commission of Enquiry into Operator Licencing in the UK recommends the retention of operator licencing on grounds of road safety, and protection of the environment whilst rejecting quantity licencing and economic regulation.14
It is submitted that any move towards economic de-regulation of road transport should be preceded by the introduction of suitable quality regulation, viz. an operator licencing system which imposes liability for compliance with prescribed operating standards on a suitably qualified individual in each road transport undertaking. The right of the undertaking to operate road transport must be made contingent on continued satisfactory performance.
- Operator Licencing for South Africa
Elements of an “o licence” system
It is necessary when talking of operator licencing to identify the different elements of the system and settle terminology to avoid confusion. The undertaking holds the “O licences” for each specified fleet and operation centre but in order to qualify for these “O licences” the firm must nominate “responsible persons” who must have proved their competence by passing the examination aid acquisition of the Certificate of Professional Competence. (CPC).
The Certificate of Professional Competence
Professionalism in any discipline implies “employment not mechanical and requiring some degree of learning. “Chambers English Dictionary” so that it is pertinent to note that some education is a prerequisite to establishment of professional competence.
This raises the questions of syllabi, course duration, tutorial methods, examination standards and a host of other related aspects, and in order lay the ground work for a CPC system for South Africa a committee was convened by the Director-General of Transport under the chairmanship of the Director of Land Transport to make appropriate recommendations. This committee composed of eminent persons from a cross section of the road transport industry, academics and administrators have examined and debated overseas practices and are now formulating their proposals.
An outline of the syllabus is given below:
CERTIFICATE OF PROFESSIONAL COMPETENCE IN ROAD TRANSPORTATION
The syllabus is designed to cover the five functional areas, managerial, legal, administrative, technical and financial. These functions commonly associated with the management of road transport undertakings, were those identified by the committee.
The O Licence
CPC Holder and Specified Fleet
It is proposed that all operators of specified classes of vehicles will be required to hold operator licences. Both public and private transport operators of vehicle with GVM in excess of 3500 kg will be issued with operator licences on which will be recorded the name of the CPC holder for each operation as well as details of the fleet operated.
Each vehicle will relate to a specific O licence so that infringements and violations can be monitored against each operator, and the totals considered at the periodic renewal of the O licence.
Continued non-compliance with regulations will be penalized (as is done overseas) by withdrawal of operating rights for one or more vehicles whilst applications for extensions will be contingent on a satisfactory, performance record.
Facilities and Maintenance Arrangements
In granting operator licences the authorities will also require to know that the proposed operations facilities are adequate and have the approval of the local planning authority and that satisfactory arrangements have been made for the maintenance of the vehicles, in-house or with a suitable service centre.
The licencing authorities will give consideration to whether applicants for O licences are “of good repute” i.e. have no previous convictions for criminal or transport operating offences.
Financial Standing and Viability
Applicants for O licences will be required to prove the existence of adequate financial arrangements for the proposal operation.
The road safety record of heavy transport in South Africa leaves much to be desired with 14.9% of commercials and buses being involved in accidents in 1982, (136 998 vehicles) 15 and although there has been some improvements (1972 figures 16.7% – 88 570 vehicles) it is contended that the introduction of operator licencing system is necessary for the identification and application of effective sanctions against habitual offenders.
In view of the present trend and pressures toward liberalization of economic regulation in South Africa and the possible fragmentation of control of transport with establishment of autonomous territories it is even more vitally important to ensure that control of operating standards is retained and improved.
To quote John Dyson, on international shipping, again, …. “the costs of incompetence are just too great to be ignored”.16
Southern African Freight Transport Institute (Reprint N.A. Porée – 1984)
- Hahlo H.R. and Kahn E., The South African Legal System and its Background, Juta, Cape Town, 1973.
- Unisa Guide, RK. 1/2/73, Appellate Division Reports, Davis v Lockstone, 1921 A.D. 153.
- Unisa Guide, RK. 1/2/73, Supreme Court Reports, Tregida and Co v Sivewright N.O., 1897. 14 SC 76.
- Pegrum, DF., Transportation economics and public policy, Irwin – Illinois 3rd 1973. p. 310
- Collet, C., Some problems of Transport Policy in France, C.I.T. Journal – Vol. 37 No. 11, July 1977, p. 325.
- Collet, C., op cit, p.47.
- Taff, CA., Commercial Motor Transportation, Cornell Maritime Press, Maryland, 5th 1975.
- Collet, C., op cit, p.41 and 49.
- Locklin, D.P., Economics of Transportation, Irwin – Illinois, 5th 1960.
- Readers Digest, Dyson, John, “Dangerous Drivers of the Sea Lanes”. (Nov 1983).
- A. Road Transportation, Editorial, Vol. 3, No.4 Jan 1984.
- S. Dept. of Transportation, Motor Carrier Safety regulations, Federal Highway Administration, U.S. Govt. Printing Office, 1973.
- of Environment (U.K.), Transport Act, 1968, H.M.S.O., London
- Foster Commission Report, Road Haulage Operator Licencing, H.M.S.O., London Nov. 1978, Chapter 5.
- The Motorist, A.A. Journal, 1stQuarter, 1984.
- Readers Digest, Nov. 1983, op cit.