This article was first published by FOCUS on Transport and Logistics on 24 July 2024
The Free Market Foundation rightly maintains that the government should not criminalise the actions of ordinary people. Excessive state interference and bureaucracy in private economic affairs undermines economic growth and should be undone.
A prime example of government measures that unduly criminalise human action is the legislation which governs land transport. The principal statute governing this sector creates numerous offences and is to be amended by the addition of yet more offences.
The principal statute, the 2009 National Land Transport Act, already imposes burdensome provisions and levies draconian punishments for contraventions and failures to comply with its provisions.
The National Land Transport Act’s manifold offences include operating a public road-transport service unless an operating licence has been issued for the vehicle. Anyone who contravenes this licence requirement is guilty of a criminal offence and is liable on conviction to a sentence of imprisonment for a period not exceeding two years or a fine not exceeding R100,000.
Operating a public road-transport service contrary to the terms and conditions of an operating licence is also an offence and is punishable by the same penalties (imprisonment for up to two years or a fine of up to R100,000).
And, if anything is done or omitted by one of the operating-licence holder’s managers, agents or employees which falls in their scope of authority or course of employment, and which would have been an offence if done or omitted by the holder, then the holder is guilty of an offence if the holder failed to take all reasonable measures to prevent it.
That means, for example, that if a manager, agent or employee of a licence holder does anything contrary to the terms and conditions of the holder’s operating licence, then the licence holder could be convicted of that offence and sentenced to imprisonment for up to two years or a fine of up to R100,000.
As if all that were not enough, the Act also creates the offence of operating a transport service for the carriage of tourists to and from tourist attractions, including transfers between airports and hotels, without being accredited by the National Public Transport Regulator as a tourist transport service. This offence likewise attracts the penalty of imprisonment for up to two years or a fine of up to R100,000.
(These offences are accompanied in the Act by a thicket of lesser offences, which are punishable by imprisonment for up to three months or a fine of up to R10,000. The Act creates 37 offences.)
Not content with all this, a pending amendment to the Act will create yet another offence punishable by imprisonment for up to two years or a fine of up to R100,000.
Parliament has enacted a 2023 Amendment Act to amend the National Land Transport Act. The President assented to the Amendment Act on 6 June 2024.
Among other things, the Amendment Act is aimed at persons who conduct business by providing operators with a technologically enabled “electronic hailing” software application. A vehicle that is equipped with such an “e-hailing” application (think Uber, Bolt and others) enables passengers electronically to hail a vehicle that is roaming in the vicinity available for hire.
The Amendment Act stipulates that an e-hailing application must estimate fares, distances and times and must communicate the estimates to passengers in advance electronically. The Minister or provincial MEC for transport may make regulations to ensure accuracy of e-hailing applications and prescribing the information regarding the driver and vehicle which the application must provide to passengers.
The Amendment Act states that a person who conducts business by providing an e-hailing application may not allow an operator to use the application for a vehicle for which the operator does not hold an operating licence and must disconnect the application until an operating licence has been obtained for the vehicle.
Any person providing an e-hailing application who fails to disconnect it in these circumstances will commit a new criminal offence. The offence will be punishable by the same severe penalties as the other stringent offences discussed above (imprisonment for up to two years or a fine of up to R100,000).
The National Land Transport Amendment Act creating this new offence will come into operation on a date to be determined by the President by proclamation.
Apart from that Amendment Act, the President on 6 June 2024 also signed a new, rather startling, “Economic Regulation of Transport Act, 2024” in the name of promoting the development of a competitive, efficient and viable transport sector. This Act too will come into operation on a date to be fixed by the President by proclamation.
This Economic Regulation of Transport Act will consolidate in a single framework the economic regulation of transport of passengers and goods, whether by land, sea or air, and by road or rail or through ports or airports.
This new Act will provide for the establishment of a Transport Economic Regulator to set prices for access to markets, entities and facilities in the transport sector, and to set levels of service in the sector. This new Regulator will have power to conduct hearings and market inquiries, and its chief executive officer will have power to appoint investigators and inspectors.
This Act will create some 15 or so additional offences. These new offences will include any failure, by a person summoned, to answer after being sworn any question fully and to the best of that person’s ability, or to produce when ordered a document or item in that person’s possession or control.
A person convicted of any of these 15 new offences created by the Economic Regulation of Transport Act will, in terms of the Act read with the 1991 Adjustment of Fines Act, be liable to a fine of up to R200,000 or imprisonment for up to five years, or both.
All this legislation criminalises the actions of ordinary people and, contrary to official assumptions, will likely undermine economic growth.
