The horrific accident on the N12 on Tuesday was described by Ismail Vadi, MEC for Transport in Gauteng, as looking like a bomb had exploded.

The driver was arrested shortly after the accident and Minister of Transport Dipuo Peters also called for the truck owner to be arrested.

But what does the law say about who should ultimately be held responsible and prosecuted? At the same time what should a driver do if he realises the vehicle is unroadworthy?

TWA spoke to Alta Swanepoel, from Alta Swanepoel and Associates, who specialises in the field of road traffic and transport legislation and does training of both traffic officials and the Transport industry.|

Swanepoel says, “The act makes both the driver and operator (owner of certain vehicles) responsible. This is explained in section 45, regulation 265 and section 49.

“Section 50 of the act gives the MEC for Transport powers to suspend vehicles and section 51 places a burden of proof on the operator to show he has done everything reasonable to comply with legislation.”

*The relevant legislative sections can be viewed if you scroll down.

Should a driver during a pre-trip check realise the vehicle is unroadworthy, what can he do, especially if he fears losing his job?

“He should inform the operator immediately because if the driver causes an accident in the unroadworthy vehicle he is considered guilty. And, as with any other job, an employer may not force an employee to do something criminal.”

“A driver cannot be technically fired for refusing to drive an unroadworthy vehicle because he is not doing something that warrants a dismissal.”

“It is very risky for truck operators who do not maintain their vehicles as they are ultimately responsible both criminally and civilly. Section 89 of the Act makes it an offence not to comply with the law regarding un-roadworthy vehicles.”

Copy of relevant sections from National Road Traffic Act 93 of 1996

Sec 45. Registration of operator
(1) (a) Subject to paragraph (b), the owner of a motor vehicle of a prescribed class is the operator thereof, and shall, upon licensing thereof, be registered as such in the prescribed manner and on the prescribed conditions.
(b) Notwithstanding the provisions of paragraph (a), a person who is not a manager, employee or agent of the owner of a motor vehicle referred to in that paragraph and who enters into a written agreement providing that such motor vehicle may be operated by such person for any period, shall for the purposes of section 49 (c), (d), (e), ( f ) and (g) be deemed to be the operator thereof for that period.
(2) The registering authority concerned shall in such circumstances as the chief executive officer may determine, submit the particulars of the operator to the chief executive officer concerned within seven days after registration of such operator.
(3) The registering authority may issue a temporary operator card to the operator under the circumstances, in the manner and on the conditions prescribed.
(4) (a) The chief executive officer shall, if satisfied that an operator card should be issued to the operator, notify the registering authority concerned accordingly.
(b) The registering authority referred to in paragraph (a) shall in the prescribed manner issue the operator with an operator card.
(5) If the chief executive officer is not satisfied that the operator should be issued with an operator card, he or she shall notify the operator in the prescribed manner as contemplated in section 50 (3) (d).
(6) The Minister may by regulation exempt any operator or category of operators from any provision of this Act.
Prescribed classes of vehicles
Classes of motor vehicles in respect of which operator to be registered
Reg 265. (1) An operator shall be registered in respect of a –
(a) goods vehicle, the gross vehicle mass of which exceeds 3 500 kilograms;
(b) breakdown vehicle;
(c) motor vehicle to which regulations 273 to 283 apply as contemplated in regulation 274;
(d) bus;
(e) midibus;
(f) mini-bus –
(i) the gross vehicle mass of which exceeds 3 500 kilograms; or
(ii) which is designed or adapted for the conveyance of 12 or more persons, including the driver; and
(g) motor vehicle used for the conveyance of persons for reward, registered in the Republic.

(2) The provisions of subregulation (1) shall not apply to a motor vehicle referred to in subregulation (1) that is—
(a) owned by the Department of Defence;
(b) operated on a public road under the authority of a temporary or special permit, motor trade number, motor dealer’s licence or a motor transport licence, as the case may be;
(c) not operated on a public road, and for the purpose of this paragraph the words “operated on a public road” shall not be construed to include the presence of such motor vehicle on a public road for the purpose of—
(i) being driven to the premises of the owner in order to take delivery thereof;
(ii) crossing a public road from one premises of the owner to another, over a distance of not more than one kilometre;
(iii) proceeding to or from a place where repairs are to be or have been effected to such motor vehicle;
(d) a trailer drawn by a tractor;
(e) a motor vehicle referred to in regulation 21(1) or 21(5).

 

Sec 49. Duties of operator
The operator of a motor vehicle shall—
(a) notify the registering authority concerned within seven days of any change in the circumstances in relation to his or her registration as the operator of such vehicle and return the operator card in respect of that motor vehicle to that registering authority;
(b) keep safe and protect from theft an operator card issued to him or her and, if any such card is lost, stolen or destroyed, he or she shall notify the nearest police station within 24 hours and the registering authority within whose area the holder is ordinarily resident within seven days after having become aware of such loss, theft or destruction or after it could reasonably be expected that he or she should have been aware of such loss, theft or destruction, whichever event occurred first;
(c) exercise proper control over the driver of such motor vehicle to ensure the compliance by such driver with all the relevant provisions of this Act, in particular the provisions regarding—
(i) the requirements in respect of the professional driving permit referred to in section 32; and
(ii) the loading of such vehicle as prescribed by or under this Act;
(d) ensure that such motor vehicle complies with the fitness requirements contemplated in Chapter V;
(e) conduct his or her operations with due care to the safety of the public;
(f) if dangerous goods or substances are conveyed, ensure that all requirements for the conveyance of such goods or substances, as prescribed in—
(i) any other law in relation to such goods or substances; and
(ii) this Act,
are complied with; and
(g) take all reasonable measures to ensure that such motor vehicle is operated on a public road in compliance with the provisions for the loading and transportation of goods as prescribed by or under this Act.

Sec 50. Power of chief executive officer in respect of motor vehicles, drivers and activities of operators
(1) The chief executive officer concerned may, on account of any evidence regarding the state of fitness of a motor vehicle in respect of which an operator is registered, produced to him or her in accordance with subsection (4), by written notice—
(a) notify such operator that such motor vehicle is suspected of being unroadworthy and that the operator should forthwith take adequate steps to ensure its continued roadworthiness in accordance with Chapter V;
(b) require from such operator to indicate in writing what precautions he or she has taken to ensure the continued roadworthiness of such motor vehicle in accordance with Chapter V;
(c) direct such operator to produce such motor vehicle for inspection, examination or testing at a time and place specified in such notice; and
(d) suspend the operator card issued in respect of such motor vehicle, if such motor vehicle has been examined or tested under paragraph (c) and found to be unroadworthy in terms of Chapter V, for such period as such motor vehicle is so unroadworthy.
(2) The chief executive officer concerned may, on account of the record of a driver of a motor vehicle in respect of which an operator is registered, by written notice—
(a) inform such operator that it is suspected that he or she does not exercise proper control over the driver under his or her authority as required by section 49;
(b) require such operator to indicate in writing what precautions he or she has taken in order to ensure proper control over drivers under his or her authority;
(c) require such operator to produce for examination the records regarding drivers which an operator is required to keep in terms of this Act; and
(d) direct that the driver concerned be retested in terms of section 25.
(3) The chief executive officer concerned may, if the record of an operator indicates that such operator does not comply with the provisions of this Act, by written notice—
(a) direct such operator to carry out his or her duties in terms of section 49 properly;
(b) appoint a person whom he or she deems fit, to investigate the activities or specific activities of such operator and direct the person so appointed to make a written recommendation to him or her regarding what measures should be taken in respect of such operator;
(c) direct such operator to appear before him or her or before any other person appointed by him or her, in order to furnish reasons for his or her failure to carry out his or her duties in terms of section 49; and
(d) notify such operator—
(i) that an operator card shall only be issued to him or her on such conditions as the chief executive officer may deem fit;
(ii) that no further operator card shall be issued to him or her for such period as the chief executive officer may specify in the notice; or
(iii) that the operator card or cards relating to such motor vehicle or vehicles as the chief executive officer may determine in respect of which he or she is registered as the operator is or are suspended until that chief executive officer is satisfied that the grounds for the suspension have lapsed:
Provided that—
(aa) the period of any suspension under subparagraph (iii) shall not exceed 12 months;
(bb) any decision by the chief executive officer under this paragraph shall only be taken on the basis of a recommendation by a person appointed under paragraph (b);
(cc) the chief executive officer shall, within 21 days after the date of the notice, in writing furnish such operator with the reasons for his or her decision.
(4) The chief executive officer concerned may, in the exercise of his or her powers under this section—
(a) require any operator, subject to any lawful objection, to make discovery of documents by way of affidavit or by answering interrogatories on oath and to produce such documents for inspection;
(b) require any operator to allow inspection of any records and documents required to be kept by the operator in terms of this Act;
(c) appoint a commission to take the evidence of any person in the Republic or in a prescribed territory or in a foreign state and to forward such evidence to him or her in the same manner as if the commission were a commissioner appointed by a court; and
(d) at any time require that an inquiry be instituted into the operational activities of an operator by a person appointed by him or her for that purpose and, if such operator is a company, also into those of any other company in a group of companies to which the operator belongs or of which the operator is the controlling company.

Sec 51. Act or omission of manager, agent or employee of operator
(1) Whenever any manager, agent or employee of an operator commits or omits an act which would have constituted an offence in terms of this Act if the operator had committed or omitted such act, that operator shall, in the absence of evidence—
(a) that he or she did not connive at or permit such act or omission;
(b) that he or she took all reasonable measures to prevent an act or omission of the nature concerned; and
(c) that an act or omission of the nature of the act or omission charged did not fall within the scope of the authority of or the course of the employment as such manager, agent or employee,
be deemed himself or herself to have committed or omitted that act and be liable to be convicted and sentenced in respect thereof.
(2) Whenever any manager, agent or employee of an operator commits or omits any act which would have constituted an offence in terms of this Act if such operator had committed or omitted it, such manager, agent or employee shall be liable to be convicted and sentenced in respect thereof as if he or she were such operator.

The Adjustment of Fines Act equals 1 year imprisonment to R 40 000 =Max fine therefor 6 x R 40 000 = R 240 000
Sec 89. Offences and penalties
(1) Any person who contravenes or fails to comply with any provision of this Act or with any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty of an offence.
(2) Any person convicted of an offence in terms of subsection (1) read with section 3K (1) or (2), 42 (1) or (2), 44 (1), 45 (2), 46 (1), 49 or 65 (1), (2), (5) or (9) shall be liable to a fine or to imprisonment for a period not exceeding six years; and
(3) Any person convicted of an offence in terms of subsection (1) read with section 3A (3), 17 (4), 17 (5), 18 (5), 59 (4), 61 (2), 66 (3) or 68 (1), (2), (3), (4) or (6) shall be liable to a fine or to imprisonment for a period not exceeding three years.
(4) Any person convicted of an offence in terms of subsection (1) read with section 61 (1) shall be liable—
(a) in the case of the death of or serious injury to a person where it is proved that the person convicted has failed to comply with paragraph (a), (b), (c) or (f) of section 61 (1), to a fine or to imprisonment for a period not exceeding nine years;
(b) in the case of damage in respect of any property or animal of another person where it is proved that the person convicted has failed to comply with paragraph (a), (d) or ( f ) of section 61 (1), to a fine or to imprisonment for a period not exceeding three years; or
(c) where it is proved that he or she has failed to comply with paragraph (e) or (g) of section 61 (1), to a fine or to imprisonment for a period not exceeding one year.
(5) Any person convicted of an offence in terms of subsection (1) read with section 63 (1) shall be liable—
(a) in the case where the court finds that the offence was committed by driving recklessly, to a fine or to imprisonment for a period not exceeding six years; or
(b) in the case where the court finds that the offence was committed by driving negligently, to a fine or to imprisonment for a period not exceeding three years.
(6) Any person convicted of an offence in terms of subsection (1) read with any other provision of this Act shall be liable to a fine or to imprisonment for a period not exceeding one year.