To park or not to park

Where can and cannot a truck park? Kevin van der Merwe, executive manager: certification & operations at the Road Freight Association (RFA), explains.

As conveyors of goods on a public road, operators have experienced that traffic officers and other law enforcement officers derive some level of satisfaction from fining drivers and vehicles for various “parking” transgressions that occur while collecting goods from consignors and delivering them to consignees. We will look at a few definitions and what constitutes key elements of the particular parking offences mentioned.

1. RECENT PROSECUTIONS BY ETHEKWINI METROPOLITAN MUNICIPALITY FOR “PARKING” VIOLATIONS

There has been an increase in members reporting the prosecution of operators queuing to enter Portnet facilities for alleged “parking” violations. The prosecutions were instituted by officials in the employ of the Ethekwini Metropolitan Municipality when vehicles were stationary on the roadway while queuing to enter the port.

What is noteworthy is that the freight vehicles were required by the Port authorities to queue in the roadway to pick up containers, and if a vehicle left the queue it would lose its position in the queue and be required to rejoin the queue at the rear. The queue was backed up onto a public road – namely Maydon Wharf. An operator is able to defend these particular cases by relying on the definition of “park” with particular reference to the phrase “park” … does not include any such keeping of a vehicle by reason of a cause beyond the control of the person in charge of such vehicle.

Officers during training engage superficially with this particular term, and a typical example of – beyond the control of the driver means that the vehicle must suffer some form of mechanical failure. If this restricted understanding were indeed the intention of the legislator, then the phrase would simply have read “park” … does not include any such keeping of a vehicle by reason of a mechanical failure of the vehicle. The phrase leaves the matter simply as a reason “beyond the control” of the person in charge of such vehicle. This very wide definition means that while the vehicle is through necessity queued on the roadway of a public road to enter the Port facility, the act of queueing is specifically excluded from the understanding of “parking” as defined in this circumstance. Therefore, the alleged offence should be withdrawn by the prosecutor upon representation.

Also noteworthy was that in some instances the freight vehicles were articulated motor vehicles or combinations such as interlinks where the truck tractor was prosecuted for the alleged offence of parking illegally and each trailer was also prosecuted. Section 83 of the Criminal Procedure Act, Act 51 of 1977 (CPA), relates to instances where the same set of culpable facts could lead to multiple charges, or alternative charges being put to an accused person using a single set of evidence. It stands to reason that if the truck tractor, or vehicle drawing a trailer(s) allegedly commits the offence of parking on the roadway of a public road, that the trailers it draws would be committing the same offence as they are attached to, and follow, the drawing vehicle. This approach by law enforcement officers is not incorrect, as it is the responsibility of the courts to decide whether the “splitting of offences” has taken place as contemplated in Section 83 of the CPA. The South African courts recognise that the splitting of charges is not an acceptable practice, as this could lead to an accused being convicted for multiple offences (charges) against the same set of evidence.

One could in similar circumstances – where an articulated motor vehicle exceeds the speed limit and the driver is prosecuted – apply the same standard and prosecute the driver for speeding against the drawing vehicle, and similarly against the semi-trailer. In all honesty, I have never seen this happen in speeding cases and can only speculate that the officers taking this approach in Ethekwini are pursuing prosecution statistics/revenue in the hope that operators will simply pay the admission of guilt fines issued three times for what is actually only a single alleged offence.

2. ELEMENTS OF THE OFFENCE THAT MUST BE PROVEN

For the state to successfully prosecute a parking offence it will need to prove the following elements of the offence – parking:

• The vehicle was stationary for a period of time
• The period of time was longer than reasonably necessary for the actual loading or unloading of goods or persons
• The offence took place on a public road
• The offence was as described in regulation 305 of the NRTA

What is not important to secure a conviction is whether anyone was in the vehicle. Neither is a specific period of time – such as the vehicle being stationary for more than five minutes – relevant to proving the offence, unless a road traffic sign specifically allows a vehicle to be parked at a place for a maximum period of time. Where the vehicle is kept stationary for a reason beyond the control of the person in charge of the vehicle, this would not be parking.

3. RELEVANT DEFINITIONS

Extracted from the National Road Traffic Act, Act 93 of 1996 (NRTA):

“park” means to keep a vehicle, whether occupied or not, stationary for a period of time longer than is reasonably necessary for the actual loading or unloading of persons or goods, but does not include any such keeping of a vehicle by reason of a cause beyond the control of the person in charge of such vehicle;

“public road” means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or section thereof or to which the public or any section thereof has a right of access, and includes-

• the verge of any such road, street or thoroughfare;
• any bridge, ferry or drift traversed by any such road, street or thoroughfare; and
• any other work or object forming part of or connected with or belonging to such road, street or thorough;

“roadway” means the portion of a road, street or thoroughfare improved, constructed or intended for vehicular traffic which is between the edges of the roadway;

“stop” means the bringing to a standstill of a vehicle by the driver thereof;

“truck tractor” means a motor vehicle designed or adapted-

• For drawing other vehicles; and
• Not to carry any load other than that imposed by a semi-trailer or by ballast,

But does not include a tractor or a haulage tractor;

“trailer” means a vehicle which is not self-propelled, and which is designed or adapted to be drawn by a motor vehicle, but does not include a sidecar attached to a motorcycle;

“semi-trailer” means a trailer having no front axle and so designed that at least 15% of its tare is super-imposed on and borne by a vehicle drawing such trailer;

“articulated motor vehicle” means a combination of motor vehicles consisting of a truck-tractor and a semi-trailer;

“combination of vehicles” means two or more motor vehicles coupled together;

“goods” means any movable property;

4. THE OFFENCE OF PARKING

Regulation 305 of the NRTA Parking of vehicles

(1)       No person shall park a vehicle on a public road-

            (a)       in contravention of any road traffic sign;

            (b)       in any place referred to in regulation 304; (regulation 304 deals with the places where a vehicle may not be stopped by the driver on the roadway of a public road)

            (c)       on the same side as a fire hydrant within an area bounded by the centre line of the roadway and lines at right angles to such centre line one and a half metres on either side of the hydrant, if such hydrant is clearly visible to and recognizable as such by drivers of moving vehicles, or if it is indicated by an appropriate road traffic sign;

            (d)       in any place where the vehicle would obscure any road traffic sign;

            (e)       in such manner as to encroach upon the sidewalk, if any; or

            (f)        in such manner as to obstruct any private or public vehicular entrance to such road.

(2)       The provisions of sub-regulation (1)(e) shall not apply to any vehicle, other than a motor vehicle, while it is being used in carrying on the business of street vendor, pedlar or hawker, unless it exceeds such maximum weight, height, length or mass as may be prescribed in these regulations.

(3)       No person shall park a vehicle on any portion of the roadway (excluding the shoulders) of a public road outside an urban area or with any part of such vehicle within one metre of the edge of such roadway except in a parking place demarcated by an appropriate road traffic sign.

(4)       No person shall park a vehicle on the roadway of a public road within an urban area-

            (a)       within nine metres of the side from which he or she approached a pedestrian crossing demarcated by appropriate road traffic signs, unless such parking is permitted by appropriate road traffic signs;

            (b)       within five metres of any intersection unless such parking is permitted by a road traffic sign;

            (c)       upon or over the actuating mechanism of a traffic signal;

(d)       (i)        with the outside of any left-hand wheel thereof more than 450 millimetres within the roadway; or

            (ii)       where the public road concerned is restricted to vehicles moving in one direction and the vehicle is parked on the side of the roadway, with the outside of any right-hand wheel thereof more than 450 millimetres within the roadway,

Unless such parking is permitted by an appropriate road traffic sign; or

(e)       which is less than five and a half metres wide unless the public road concerned is restricted to vehicles moving in one direction and such parking is permitted by appropriate road traffic signs.

(5)       No person shall park a motor vehicle on a traffic island or in a pedestrian mall or pedestrian lane.

(6)       Whenever a vehicle has been parked in contravention of any provision of the Act (NRTA), or any by-law made under the Act, or in contravention of or in disregard of the directions of any road traffic sign or notice board as prescribed in these regulations, such vehicle may be removed or caused to be removed and impounded by a traffic Officer, and unless the vehicle has been so parked in the course of a theft thereof, the owner shall bear the costs of such removal and impoundment.

(7)       No person other than the disabled person or a driver of a motor vehicle conveying disabled persons shall park in a parking bay reserved for disabled persons.

5. PROSECUTION SUPPORT

Association members who experience problems with specific types of traffic prosecution are welcome to discuss the matter with Kevin van der Merwe to determine if the elements of the specific offence have been properly considered, or if there may be grounds to submit a representation for withdrawal or a reduction in the fine amount due. Kevin can be reached at kevin@rfa.co.za. Kindly provide as much information as possible relating to the circumstances of the alleged offence with a statement/report and contact details of the driver who was prosecuted. It is important to do this as soon as possible after the alleged offence, while the details are still fresh in the driver’s mind.