Transport businesses bombarded with criminal offences

Transport companies need to brace themselves for even more legislation – and some huge potential fines – warns GARY MOORE.

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. An excess of statutory offences can lead to disrespect for the law.

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, with the addition of yet more offences. Offences in the statute that are not clearly in the public interest are those imposed on transport businesses for failing to hold and comply with “operating licences”, which the statute requires in addition to the usual drivers’ and vehicle licences. 

The principal statute, the 2009 National Land Transport Act (NLTA), imposes burdensome operating licence obligations and levies draconian punishments for contraventions and failures to comply with its provisions.

The NLTA’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 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, punishable by the same sentencing penalties.

And, if anything is done or omitted by one of the operating licence holder’s managers, agents, or employees which falls within 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 they 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 fined 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 plethora (37 in total) of lesser offences, which are punishable by imprisonment for up to three months or a fine of up to R10,000.

Not content with all this, 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.

The pending amendment will create yet another offence punishable by imprisonment for up to two years or a fine of up to R100,000. Among other things, the amendment is aimed at persons who conduct business by providing operators with a technologically enabled “electronic hailing” software application. A vehicle equipped with such an “e-hailing” application can be hailed electronically by passengers whilst roaming in the vicinity (think Uber, Bolt, and others).

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 the accuracy of e-hailing applications, which also prescribe the information regarding the driver and vehicle which must be provided to passengers by the application.

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 be committing a new criminal offence, 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, on 6 June the president also signed the 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.

The 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. The new Regulator will have power to conduct hearings and market inquiries, and its chief executive officer will have the 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 any question fully and to the best of their ability, or to produce when ordered a document or item in their 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.