Consignor, consignee legislation revisited

Regulation 330A to 330D of the National Road Traffic Regulations came into effect eight years ago, on 31 January 2015. What does it mean to consignors and consignees? The Road Freight Association (RFA) explains…

This piece of transport legislation was not designed for enforcement by traffic officers at the roadside. This is due to the complexity of the regulations and the implications as to whether or not a transporter is conveying goods of a defined consignor or consignee. More particularly, the legislation is directed at the consignor and consignee, neither of whom will generally be present in the transport vehicle when it is stopped for law enforcement purposes.

The legislation does provide for holding the consignor and consignee responsible for compliance failures, and enables investigation into their involvement when road transport-related incidents occur with catastrophic consequences. It could reasonably lead to the prosecution of the consignor and/or consignee where their failure to comply is causal or results in damage to property and/or the loss of life. Where the consignor or consignee is a juristic person, the responsible director or member could face prosecution.

It is important to understand who the “consignee” and “consignor” are in the transport relationship, as these regulations relate specifically to these role-players and impose duties on them. There is also a reference to the operator in the regulations and, as such, this definition is included for ease of reference. To this end, we refer to the definitions in the legislation.

Definitions

“Consignee” in relation to goods transported or to be transported by a vehicle means the person excluding the consignee of dangerous goods in terms of regulation 273, who is named or otherwise identified as the intended consignee of more than 500 000 kilograms of goods in a month in the goods declaration for the consignment and who actually receives such goods after they are transported by road;

“Consignor” means a person excluding a consignor of dangerous goods in terms of regulation 273, who is named or otherwise identified as the consignor of goods in the goods declaration relating to the transportation of more than 500 000 kilograms of goods in a month by road or engages an operator of a vehicle, either directly or indirectly or through an agent or other intermediary, to transport the goods by road or has possession of, or control over, the goods immediately before the goods are transported by road or loads a vehicle with the goods, for transport by road, at a place where goods are stored in bulk or temporarily held but excludes the driver of a vehicle, or any person responsible for the normal operation of the vehicle during loading;

“Operator” means the person responsible for the use of a motor vehicle of any class contemplated in Chapter VI, and who has been registered as the operator of such vehicle.

From the definitions above, the transport of dangerous goods by road is specifically excluded from these regulations. These vehicles are subject to the requirements set out in regulation 273 for the conveyance of dangerous goods.

A consignor and a consignee only become such when the 500 001 kg of goods are dispatched or received by road in a particular month and, strictly speaking, only from that point in the month moving forward, according to the wording of these definitions. This means that effectively an operator may upload goods for delivery to various distribution points, where some of the receivers are consignees (as defined) because they have received over 500 000 kg of goods into their facility at that point in time during the month (regardless of the source of the goods). In contrast, a small local retail outlet may not receive the minimum 500 000 kg of goods necessary to meet the defined meaning of a consignee. As far as the definition of consignee and consignor is concerned, the specific operator uplifting, transporting, or delivering the goods is irrelevant.

For the purpose of this legislation, an operator refers to the person responsible for use of the vehicle, which is a goods vehicle with a gross vehicle mass (GVM) exceeding 3 500 kg.

Always consider that regulations 330A to 330D apply ONLY to consignees and consignors as defined above.

Regulation 330A – Offering and acceptance of goods on overloaded vehicles prohibited

• A consignor or consignee of goods shall not offer goods or accept goods if the vehicle in which it is transported is not loaded in terms of the provisions for the loading and transportation of goods as prescribed in this Act. (The National Road Traffic Act, Act 93 of 1996, which includes the regulations)

• A consignor shall require from the operator of the vehicle in which the goods he or she offers for transport and in which the goods will be transported, a written submission as to the payload of such vehicle and the distribution of such load on a vehicle.

• If a consignor is responsible for the loading of a vehicle of an operator, he or she shall take such steps as are necessary to ensure that the vehicle is loaded as contemplated in sub-regulation (1) and (2).

• A consignor or consignee shall not conclude a contract with the operator to transport goods on a vehicle if the vehicle is overloaded when such load is transported on such vehicle.

In regulation 330A, a consignee or consignor who is neither the driver nor operator of the vehicle has a duty to ensure that the load is compliant with the requirements of the Act. This is not only in terms of overloading and dimensional compliance. Aspects such as load securement and compliance with other requirements such as permits for the transport of abnormal loads must be considered.

In sub-regulation (2), a duty is imposed on the operator of the goods vehicle to provide a consignor with the payload capacity of the vehicle or combination, as well as the payload distribution, to enable the consignor to load the vehicle or combination correctly.

This is particularly important for the consignor, who is responsible for loading where the load consists of multiple consignments that will result in the removal of goods at various points along a route. When the first trailer of a link combination is offloaded prior to the rear trailer, this may result in the combination becoming overloaded due to the reduction of traction on the drive axle(s), which must always be at least 20% of the total mass of the combination at the material time.

Sub-regulation (4) makes it clear that no contract may be entered into where overloading will result.

Regulation 330B – Consignor to have a method of determining mass

• A consignor shall use a method of establishing the mass of a vehicle and any axle or axle unit of such vehicle that is accurate as to ensure that such vehicle axle or axles are not overloaded in terms of part IV of Chapter VI.

• A consignor shall keep a record of the mass of every load transported from his or her premises as contemplated in sub-regulation (1).

• The record as contemplated in sub-regulation (2) shall be put at the disposal of any traffic officer or person appointed as contemplated in section 50 or authorised as contemplated in section 82 of the Act.

The duty to ensure that overloading does not take place is that of the consignor, but does NOT necessarily require the consignor to weigh the vehicle. The requirement is that the consignor has an accurate method to establish (or determine) that the axles and vehicle are not overloaded. It does not require the consignor to provide the mass on each axle, only to determine accurately that the axles and vehicle are not overloaded.

The consignor is obliged to keep a record of every load leaving their premises with due regard to the method used to ensure that overloading of the vehicle and its axles did not take place. Once again, consider who the consignor is, and understand that it is not the duty of the operator in terms of sub-regulation (2) to keep the records.

Section 50 and 82 provide a member of the executive council (MEC) and the Minister of Transport respectively to appoint persons to investigate compliance with requirements set out in the National Road Traffic Act, Act 93 of 1996, and its regulations.

Regulation 330C – Goods declaration to be carried on a motor vehicle

A person operating on a public road a motor vehicle which carries goods shall be in possession of a declaration containing the following information-

• the licence number of each vehicle in the combination of vehicles;

• the nature and quantity of goods transported;

• the contact particulars of the operator or in the case of a combination of vehicles, of every operator in the combination of vehicles;

• the particulars of the consignor and consignee of the load or in the case of loads collected at and delivered to more than one consignor and consignee, the particulars of every consignor or consignee;

• the name, residential and postal address of every natural person or in the case of a juristic person, the responsible director or member, an agent, consignor, consignee or operators listed in the declaration;

• the consignor and operator shall conclude a written agreement for the transportation of goods stating-

• the nature of the agreement;

• the loading instructions; and

• the responsibilities of the parties.

• schedule of insurance as contemplated in regulation 330D.

The provisions of regulation 330C place a tremendous burden on operators with regard to the provision of personal information in sub-regulation (e) which may yet be challenged in terms of the Protection of Personal Information Act, Act 4 of 2013.

The inclusion of the written agreement referred to in sub-regulation (f) will require this information to be separate from any main agreement that talks to sensitive matters of a competitive nature – such as pricing – that the parties would wish to keep confidential.

Regulation 330D – Consignor or consignee to insure goods to be carried on a motor vehicle and the motor vehicle

A consignor or consignee of goods shall not transport goods on a public road or accept goods unless such transportation is fully insured for damages that can occur as a result of an incident.

It is still not clear what would constitute “fully insured” against the backdrop of what might possibly happen, whether it is a crash, theft, hijacking, the need for rehabilitating structures damaged in an incident, and so on. It may be speculated that this is a reference to third-party cover to reinstate affected third parties. However, the term “fully insured” has not been tested.

Conclusion

Since the effective date of the consignor, consignee regulations 330A to 330D on 31 January 2015, not one prosecution has been instituted. Industry role players might agree that the regulations are poorly written and not very clear in some areas. Nevertheless, the legislation is in place and in effect, and consignors and consignees have an obligation to comply with it.

The test will come when an incident happens where an existing element of non-compliance results in the managing director of a consignor or consignee standing trial alongside the driver and the operator of the transport company. At that stage, it may be too late to implement the provisions of regulation 330A to 330D.

If you are a consignor or consignee as defined above, it is important to take the time to consider whether your company complies with the consignor, consignee legislation.