ANNEXURE C

ANNEXURE C

WORKING DOCUMENT FOR
CROSS-BORDER BILL

To provide for co-operative and co-ordinated provision of advice, regulation, facilitation and law enforcement in respect of cross-border road transport by the public and private sector; to that end, to provide for the establishment of the International Road Transport Agency and; to repeal certain laws; and to provide for matters connected therewith.

PREAMBLE

SINCE there is a need to improve the unimpeded flow by road of freight and passengers in the region, to liberalize market access progressively in respect of cross-border freight road transport, to introduce regulated competition in respect of cross-border passenger road transport and to reduce operational constraints for the cross-border road transport industry as a whole;

AND SINCE there is a need to enhance and strengthen the capacity of the public sector in support of its strategic planning, enabling and monitoring function;

AND SINCE there is a commitment to empower the cross-border road transport industry to maximize business opportunities and to regulate themselves incrementally to improve safety, security, reliability, quality and efficiency of services;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

PART I

Definitions

1. In this Draft Bill, unless the context indicates otherwise-

(i) "Agency" means the International Road Transport Agency established by section 3;

(ii) "agreement" means an agreement entered into under section 2(1);

(iii) "authorized officer" means-

any national road transport inspector appointed under section 29(1);
any duly appointed provincial transport inspector;
any inspector of licences, examiner of vehicles, examiner for drivers' licences and traffic officer as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996); or
any immigration officer as defined in section 1 of the Aliens Control Act, 1991 (Act No. 96 of 1991).

(iv) "Board" means the Board of Directors of the Agency;

(v) "cabotage" means transport undertaken on a public road by a foreign carrier with a vehicle which involves-

the on- or offloading of freight or passengers between two points in the Republic; or
the onloading of freight or passengers in the Republic for conveyance to a third country which is not the country of registration of the vehicle used for such transport and where such country of registration is not traversed;

(vi) "Commission" means the National Transport Commission established by section .. of the National Land Transport Act, 1997 (Act No. .... of 1997);

(vii) "competent authority" means an authority designated as such in the legislation of a foreign country or in any agreement entered into under section 2(1);

(viii) "Cross-border road transport" means the carriage of freight or passengers to or from the Republic and another country or in transit across the Republic or another country;

(ix) "Director-General" means the Director-General of the national Department of Transport;

(x) "foreign carrier" means a carrier who undertakes cross-border freight or passenger road transport with a vehicle which is registered in a country other than the Republic;

(xi) "Minister" means the national Minister of Transport;

(xii) "owner" in relation to a vehicle registered in any country under the law governing the registration of vehicles in force in that country, means the person who for the purposes of that law is its owner;

(xiii) "permit" means-

a cabotage permit issued in respect of a vehicle for a period of three months, six months or one year or for a fixed number of journeys;
a cross-border road transport permit issued in respect of a vehicle for a period of three months, six months or one year or for a fixed number of journeys authorizing the transport of freight or passengers on specified routes; or
a temporary cross-border road transport permit or cabotage permit issued in respect of a vehicle for a maximum period of 14 days authorizing the transport of freight or passengers on specified routes or cabotage, as the case may be;

(xiv) "prescribed" means prescribed by regulation by the Minister under section 39;

(xv) "public road" means any road declared or recognized as a public road under any law, and includes any road, street, thoroughfare or other place (whether a thoroughfare or not) to which the public or any section of the public has a right of access;

(xvi) "Regulatory Committee" means the body established by section 12;

(xvii) "Republic" means the Republic of South Africa;

(xviii) "reward" means compensation, and includes compensation received in terms of a contract concluded for the hiring of a vehicle and a driver or the hiring of a vehicle and the separate hiring of a driver;

(xix) "South African carrier" means a carrier who undertakes cross-border road transport with a vehicle which is registered in the Republic;

(xx) "this Act" includes any notice, regulation or schedule made under it; and

(xxi) "vehicle" means-

in relation to cross-border freight road transport, any mechanically-propelled road vehicle-

- which is constructed, adapted or used for the carriage of freight, excluding a semi-trailer and trailer in the case of an articulated vehicle; and
- which either by itself or as part of an articulated vehicle exceeds a permitted maximum gross weight of three and a half tons;

in relation to cross-border passenger road transport, any mechanically-propelled road vehicle which is constructed or adapted for the conveyance of passengers or any other vehicle which is used to convey passengers; and
in relation to cabotage, any mechanically-propelled road vehicle and, in the case of an articulated vehicle, also a trailer and semi-trailer.

PART 2

Road Transport Agreements with other Governments

Authorization to conclude road transport agreements

2.(1) The President may, subject to section 231(2) and (3) of the Constitution, enter into an agreement with the government of any country whereby arrangements are made with that government to control and regulate the transportation of freight and passengers between the Republic and that country based on reciprocity and non-discrimination and, where appropriate, extra-territorial jurisdiction.

(2) The Minister shall, as soon as practical after Parliament has agreed to the ratification, or accession or amendment or revocation of an agreement, give notice thereof in the Gazette and add such agreement as a Schedule to this Draft Bill.

(3) (a) The Minister may, when another country is not according South African carriers treatment equal to that being accorded by the Republic to the carrier of that country, by notice in the Gazette-

(i) notwithstanding anything to the contrary contained in this Act, prohibit the Regulatory Committee from considering any application by a foreign carrier for the granting, renewal, amendment or transfer of any permit to undertake cross-border road transport to or from any place or area specified in the notice; and

(ii) notwithstanding anything to the contrary contained in this Act or the permit concerned, prohibit a foreign carrier who holds a permit to undertake cross-border road transport to or from any place or area specified in the notice.

(b) The Minister may at any time amend or repeal a notice referred to in paragraph (a) by notice in the Gazette.

PART 3

International Road Transport Agency

Establishment of Agency

3.(1) A juristic person known as the International Road Transport Agency is hereby established.

(2) The Agency shall be capable in law of instituting, defending or opposing legal proceedings of whatever nature, of purchasing or otherwise acquiring, holding and alienating or otherwise disposing of movable or immovable property or any other real right or other right or interest, of entering into contracts or doing such other things as juristic persons may by law perform and do, subject to the provisions of this Act.

(3) The Agency may perform all such acts and do all such things as are reasonably necessary for or ancillary, incidental or supplementary to the performance of its advisory, regulatory, facilitatory and law enforcement functions as contemplated in this Act.

Representation by Board

4.(1) The Agency shall be governed and represented by its Board.

(2) The Minister shall appoint the members of the Board consisting of-

the Chairperson who shall be fit on account of his or her profile and expertise in the cross-border road transport industry and shall not be employed by the public sector;
the Deputy Chairperson who shall be an officer of the national Department of Transport nominated by the Director-General;
not more than eight members, of whom not more than-

four shall be persons drawn from the private sector who shall be fit on account of their technical expertise in cross-border road transport; and
four shall be persons selected by the Minister from the names of persons which, at the Minister's request by notice in the media, have been submitted to him or her within the period specified in the notice by any association, institution, organization or individual with an interest in the cross-border road transport industry and the consumer sector.

(3) Prior to the appointment of a person to the Board, the Minister shall-

by notice in the Gazette publish his or her intention to appoint that person and invite public comment or objections within the period of time specified in the notice; and
take into account any comment or objection received by him or her in accordance with such notice.

Disqualifications

5. No person shall be appointed as a member of the Board if he or she-

is an unrehabilitated insolvent;
is of unsound mind, or is subject to an order of a competent court declaring such person to be mentally ill or disordered; or
has been convicted of an offence and sentenced to imprisonment without the option of a fine.

Period of office of Chairperson, Deputy Chairperson and members

6.(1) The Chairperson, Deputy Chairperson and the members of the Board shall be appointed by the Minister for a period not exceeding three years.

(2) Members of the Board shall be eligible for re-appointment, and individual members may be appointed for different periods and on different conditions.

Chairperson and Deputy Chairperson

7.(1) The Deputy Chairperson shall act as Chairperson of the Board whenever the Chairperson is for any reason unable to act as such.

(2) Whenever both the Chairperson and the Deputy Chairperson of the Board are absent or unable to fulfil any of the functions of the Chairperson, the members of the Board shall designate any other member of the Board to act as Chairperson of the Board during such absence or incapacity.

Alternate members

8.(1) (a) The Minister may, subject to subsection (2), at the request of a member of the Board other than the Chairperson, the Deputy Chairperson or a member who serves on the Board because of his or her office, appoint an alternate member for that member.

(b) In the absence of a member from a meeting of the Board, the alternate member concerned may attend the meeting, and when so attending the alternate member shall be deemed to be a member of the Board.

(2) No alternate member shall be appointed for a member referred to in section 4(2)(c)(i).

Notice of appointment

9. The Board shall cause notice of the appointment of a member or alternate member of the Board, and the date of the appointment, to be published in the Gazette.

Vacation of, and removal from, office

10.(1) A member of the Board shall vacate his or her office if he or she-

becomes subject to any of the disqualifications for appointment referred to in section 5; or
dies or is removed from office under subsection (2) or resigns by notice in writing addressed to the Minister.

(2) The Minister may remove from office any member of the Board-

who has failed to comply with any condition of his or her appointment;
who has been guilty of improper conduct or has neglected his or her duties as a member of the Board; or
who is unable to perform his or her duties efficiently as a member of the Board.

Conditions of service of Chairperson, members or alternate members of Board

11. The Chairperson, a member and alternate member of the Board, other than the Deputy Chairperson, shall be appointed on the conditions of service, including the payment of remuneration and allowances, which the Minister determines with the concurrence of the Minister of Finance.

Regulatory Committee

12. The Board shall establish a Regulatory Committee comprising-

the Chairperson and Deputy Chairperson of the Board who shall also serve as Chairperson and Deputy Chairperson of the Regulatory Committee;
the four members referred to in section 4(2)(c)(i); and
the Chief Executive Officer referred to in section 13(1)(a).

Staff of Agency

13.(1) The Board shall, in consultation with the Public Service Commission and subject to the approval of the Minister with regard to staff and resources, establish its own administration to provide the required administrative, secretarial, research and technical assistance to the Board in support of the execution of its advisory, regulatory, facilitatory and law enforcement functions and to this end the Board shall appoint-

a Chief Executive Officer;
such other staff as the Board may deem necessary; and
road transport inspectors.

(2) The Board may pay to the persons in its employ such remuneration and allowances and provide them with such pensions and other benefits as the Board may determine with the approval of the Minister with the concurrence of the Minister of Finance and after consultation with the Public Service Commission.

Consultation

14.(1) The Chief Executive Officer shall in support of the execution of the Board's functions, consult upon request of the Board or as the need arises with any relevant international, national and provincial authorities and private sector stakeholders including labour and develop and maintain appropriate stakeholder consultative networks and establish appropriate stakeholder consultative forums.

(2) For the purpose of subsection (1), the Chief Executive Officer shall establish a stakeholder consultative forum which includes appropriate representation from-

the Department of Foreign Affairs;
the Department of Home Affairs;
the Department of Trade and Industry; and
the Commissariat of Customs and Excise.

(3) The Chief Executive Officer shall report to the Board on a quarterly basis or as the need arises on any consultation undertaken.

Meetings and decisions

15.(1) The first meeting of the Board shall be held at the time and place determined by the Minister, and thereafter meetings are held at the times and places determined by the Chairperson of the Board.

(2) The Board shall determine the time and place for the first meeting of the Regulatory Committee.

(3) The Board shall devise the procedures for its meetings and decisions, those of the Regulatory Committee: Provided that a quorum for a meeting-

of the Board shall be four members; and
of the Regulatory Committee shall be three members.

(4) All decisions of the Board and the Regulatory Committee shall be recorded in writing.

(5) No decision of the Board shall be invalid by reason only of the fact that, when such decision was taken, a casual vacancy existed on the Board or a person disqualified under section 5 from being a member was such a member, whether or not such person's concurrence was necessary for the taking of that decision.

(6) All acts of the Board and the Regulatory Committee shall in law be regarded as the acts of the Agency.

Procedures

16. The Board or the Regulatory Committee, as the case may be, may, for the purpose of dealing with any matter before it in terms of this Act-

allow any person affected by or interested in such matter, or the duly authorized representative of such a person, to appear before it and-

to give evidence or make oral representations relevant to such matter;
to call witnesses and lead evidence on any question relevant to such matter; or
to question any person who testified as a witness in such matter;

by a prescribed notice served in the prescribed manner, require any person to appear before it to give evidence or to produce any book, plan or other document or article in his or her possession or under his or her control;
call upon any person present in or at the place where such matter is dealt with by it, to appear before it to give evidence or to produce any book, plan or other document or article which such person has with him or her;
question any person appearing before it as a witness; and
refuse to hear any person appearing before it as a witness who refuses to be sworn or to be affirmed.

Financing of Agency

17.(1) The Agency shall finance its operating and capital costs from-

money levied on the basis of the application of the principle of beneficiary pays for services rendered in connection with-

the application and issuing of any permit and the retention of any permit issued for an indefinite period; or
( subject to the provisions of this Act, the dissemination of any information, advice or research findings;

money collected from the imposition of fines in terms of this Act;
donations; and
money appropriated by Parliament from time to time for that purpose;

(2) The Agency shall utilise any money contemplated in subsection (1) in accordance with the statement of estimated expenditure referred to in subsection (3).

(3) The Agency-

shall in each financial year, at a time determined by the Minister, submit a statement of estimated income and expenditure for the following financial year to the Minister for his or her approval, granted with the concurrence of the Minister of Finance; and
may in any financial year submit adjusted statements of estimated income and expenditure to the Minister for his or her approval, granted with the concurrence of the Minister of Finance.

Banking account

18. The Agency shall, with the approval of the Director-General, open and maintain with a bank registered finally as a bank in terms of the Banks Act, 1990 (Act No. 94 of 1990), an account in which there shall be deposited the money received by the Agency and from which payments for it or on its behalf shall be made.

Reporting

19. The Board shall report to-

the Minister at least once every year on its activities, and the Minister shall cause such report to be tabled forthwith in Parliament, and shall simultaneously submit copies of such report to the members of the Executive Councils of the Provinces responsible for transport; and
the Commission at least once a year on matters of mutual interest and, as the need arises, notify the Commission of problems which require its co-operation and co-ordination to resolve;

PART 4

Scope and Functions of the Board

Functions of Board

20. The Board shall-

advise the Minister on any aspect related to cross-border road transport policy;
regulate access to the market by the road transport freight and passenger industry in respect of cross-border road transport;
facilitate-

the establishment of co-operative and consultative relationships and structures between public and private sector institutions with an interest in cross-border road transport;
the collection, processing and dissemination of relevant information; and
the provision of training, capacity building and the promotion of entrepreneurship generally and, in particular, in respect of small, medium and micro enterprises with an interest in cross-border road transport.

undertake road transport law enforcement.

PART 5

Advisory Functions of Board

Advisory functions

21.(1) The Board shall advise the Minister, as the need arises or upon request of the Minister, on cross-border road transport policy matters including strategies regarding restrictive measures implemented by other countries, the phasing in of measures to liberalize market access, strategies to reduce operational constraints, training needs and the contributory role of cross-border road transport in fulfilling the objective of integrated transport planning.

(2) The Board shall support the Minister and the Department in the negotiation and renegotiation of cross-border road transport agreements contemplated in section 2(1) and executive arrangements contemplated in section 22(4).

PART 6

Regulatory Functions of the Board

Regulatory functions

22.(1) No person shall undertake cross-border road transport unless he or she is the holder of a permit.

(2) A South African carrier shall, where an agreement referred to in section 2(1) exists and provides for extra-territorial jurisdiction, apply, in accordance with the provisions of the agreement and the regulations, to the Regulatory Committee for a permit authorizing road transport from the territory of the Republic into or across the territory of any country with which the Republic has concluded such an agreement and from such territory back to the Republic.

(3) A foreign carrier shall, where an agreement referred to in section 2(1) exists and provides for extra-territorial jurisdiction, apply, in accordance with the provisions of the agreement and the regulations, to his or her competent authority for a permit authorizing road transport from the territory of the country concerned into or across the territory of the Republic and from the territory of the Republic back to the territory of such country: Provided that the Regulatory Committee shall, where required in accordance with the provisions of such an agreement, consider the application of such foreign carrier and recommend to the competent authority whether or not to issue the carrier concerned with a permit.

(4) A South African carrier and a foreign carrier shall, where an agreement referred to in section 2(1) exists but does not provide for extra-territorial jurisdiction or where the Minister has concluded an executive arrangement with a Minister of another country in anticipation of concluding an agreement referred to in section 2(1), apply, in accordance with the provisions of the agreement and the regulations or the provisions of the executive arrangement, to the Regulatory Committee for a permit authorizing the part of the road transport undertaken in the territory of the Republic;

(5) A South African carrier and a foreign carrier shall, where no agreement referred to in section 2(1) exists, apply to the Regulatory Committee for a permit authorizing the part of the road transport undertaken in the territory of the Republic.

(6) The Regulatory Committee shall in relation to any application for the granting, amendment, renewal or transfer of permits for cross-border freight road transport-

consider such application in accordance with the application procedures as prescribed and on the basis of the information presented by the Chief Executive Officer; and
where an application is granted, issue a permit subject to such conditions or requirements as it may deem necessary.

(7) The Regulatory Committee, in relation to any application for the granting, amendment, renewal or transfer of permits for cross-border passenger road transport-

shall consider such application in accordance with the application procedures as prescribed and on the basis of the prescribed information presented to the Chief Executive Officer by the applicant and any further considerations as may be prescribed; and
may, where an application is granted, issue a permit subject to such conditions or requirements as it may deem necessary.

Cabotage

23.(1) Cabotage shall be prohibited.

(2) The Regulatory Committee shall, in regulating access to the market, give effect to the prohibition on cabotage, but may consider lifting the prohibition on cabotage and issue an appropriate permit in a case where-

the country of a foreign applicant accords a South African carrier equal treatment in this regard; or
it is satisfied that there is no South African carrier who can provide a similar service and where lifting the prohibition is in the best interest of the Republic.

(3) Where cabotage is permitted, any truck-tractor and trailer and semi-trailer used in combination for the purposes of such transport, shall be registered in the same country.

(4) With a view to phasing out existing cabotage permits held by foreign carriers, the Regulatory Committee shall not renew any existing cabotage permits unless the country of the foreign carrier accords a South African carrier equal treatment in this regard.

Delegation of powers

24. The Regulatory Committee may delegate powers to the Chief Executive Officer, in writing, to-

consider applications, in accordance with the prescribed procedure, for the granting, amendment, renewal or transfer of-

14 days or three months permits by South African carriers who wish to undertake cross-border freight road transport in terms of an agreement referred to in section 2(1) which provides for extra-territorial jurisdiction and who have not transgressed a prescribed points demerit threshold; and
permits for a maximum of 14 days by South African carriers who wish to undertake cross-border passenger road transport in terms of an agreement referred to in section 2(1) which provides for extra-territorial jurisdiction and who have not transgressed a prescribed points demerit threshold; and

issue such permits subject to such conditions or requirements as he or she may deem necessary where the application is granted.

Reporting

25.(1) Where the Chief Executive Officer performs a power delegated under section 24, he or she shall, over and above any prescribed verifications, report to the Regulatory Committee on a quarterly basis in respect of the permits issued by him or her.

(2) The Regulatory Committee shall submit quarterly reports to the Board providing information on the permits issued in the preceding quarter, and this shall include information on any permit issued by the Chief Executive Officer by virtue of section 24.

Publication

26. The Regulatory Committee shall, before considering any application for the granting, amendment, renewal or transfer of a one year permit or the renewal or amendment or transfer of a renewed three month permit for cross-border passenger road transport, publish in the Gazette the particulars of any application as may be prescribed and invite any person to make representations in the manner and within the time prescribed, in respect of such application, except where an agreement referred to in section 2(1) provides otherwise.

Appeal

27. Any person who-

has applied to the Regulatory Committee for the granting, renewal, amendment or transfer of a one year permit or the renewal, amendment or transfer of a renewed three month permit for cross-border passenger road transport;
is the holder of any permit issued by the Regulatory Committee for cross-border passenger road transport; or
in the manner and within the time prescribed, submitted representations to the Regulatory Committee objecting to or supporting any application for a permit for cross-border passenger road transport published in terms of section 24,

and is affected by any decision of the Regulatory Committee, may, in the manner and within the time prescribed, after the said decision was taken by the Regulatory Committee, appeal against such decision to the Commission.

PART 7

Facilitatory Functions of Board

Facilitatory functions

28.(1) The Board shall facilitate the development of corridor-based co-operative and consultative relationships and structures amongst all relevant private and public sector entities, which may include cross-border road transport carriers, national, provincial and local transport, safety and security authorities and border-post authorities.

(2) The Minister may, upon request of the Board and in support of the development of the relationship referred to in subsection (1), prescribe guidelines for the establishment of cross-border road transport corridor or route-based consultative mechanisms.

(3) The Board shall, in support of its functions, develop and maintain a cross-border road transport information database containing information obtained from any appropriate source, and devise the most appropriate ways to disseminate cross-border road transport information.

(4) The Minister shall prescribe the type of information to be included in the database, who may access such information and the procedures to access the information.

(5) The Board shall, on an ongoing basis, monitor operational constraints to cross-border road transport, notify the appropriate authorities or parties who are required to take action in this regard and collectively prioritize and develop implementation strategies to minimize such constraints.

(6) The Board shall regularly assess its capacity and training needs and those of the Road Transport Inspectorate referred to in section 29 with a view to enhancing the performance of their functions both as separate and co-operating entities.

(7) The Board shall regularly assess the capacity and training needs of the private sector and devise strategies to encourage the private sector to incrementally assume responsibility for such training in preparation for a progressively increasing self-regulatory role.

(8) The Board may co-operate with any other appropriate foreign institution or entity to facilitate training and capacity building with a view to promoting the unimpeded flow of cross-border road transport.

PART 8

Law Enforcement

Road Transport Inspectorate

29.(1) The Road Transport Inspectorate shall consist of road transport inspectors appointed by the Board.

(2) The powers of national road transport inspectors shall be as prescribed by the Minister.

Functions of Road Transport Inspectorate

30.(1) The Road Transport Inspectorate shall enforce the provisions of this Act and shall support the Board and the Regulatory Committee in the performance of its functions.

(2) The Road Transport Inspectorate shall, from time to time as determined by the Regulatory Committee and in the prescribed format, submit to the Regulatory Committee a contraventions report which contains-

law enforcement information on a route basis; and
general information on traffic flows and tendencies.

Offences and penalties

31.(1) A person who-

undertakes cross-border road transport without the required permit;
undertakes cross-border road transport contrary to the conditions or requirements of a permit;
undertakes cabotage without the required permit;
undertakes cabotage contrary to the provisions of any permit;
being a permit holder or the agent or employee of a permit holder, allows a person who does not hold a permit, to use the permit holder's permit;
obtains or applies for a permit knowing that another permit has already been issued in relation to the same vehicle;
with the intent to deceive, forges, alters, defaces, mutilates or adds to a permit;
gives false information when required to supply information in terms of this Act;
knows that any writing is not a permit or document issued under this Act, or that any permit or other document issued under this Act has been altered, defaced, mutilated or added to, and who utters such writing, permit or other document or uses it for the purposes of this Act;
except as provided in this Act, transfers any permit or distinguishing mark, without the written consent of the Regulatory Committee, to any vehicle or person other than the motor vehicle or person referred to or named in the permit or distinguishing mark;
pretends to be an authorized officer;
wilfully obstructs or hinders, or interferes with, an authorized officer in the execution of his or her duties;
fails to comply with a direction or request made by an authorized officer;
being a permit holder or a driver of a vehicle, does not adhere to any prescribed obligation;
fails to ensure that a permit which relates to a particular vehicle is kept in such vehicle;
fails to complete a consignment note or passenger list as prescribed;
fails to carry a consignment note or passenger list, as the case may be, at all times in a readily accessible place on the vehicle concerned;
does not submit a used permit, consignment note or passenger list to the Regulatory Committee;
with the intent to deceive, prepares any document for use in connection with cross-border road transport containing an incorrect description, knowing that description to be incorrect;
fails to apply for a duplicate permit in the case of a damaged or illegible permit;
fails to affix or keep affixed a distinguishing mark on any vehicle as prescribed;
fails within 21 days of any change in regard to the information contained in the application form notify the Regulatory Committee;
fails within 21 days of the lapsing of the roadworthy certificate of a vehicle, to furnish the Regulatory Committee with a new roadworthy certificate or copy of it which failure shall automatically result in the lapsing of the validity of the permit;
fails to ensure that a vehicle is-

fit, proper and suitable with regard to the route, freight or passengers and the circumstances in which the transport is undertaken;
fit, proper and roadworthy in terms of the requirements of any road traffic legislation;
used in accordance with all provisions of road traffic legislation; or
used within appropriate safety limits, precautions and requirements regarding the route, circumstances, commodity or persons being transported, the vehicle or the immediate or general public interest;

fails to ensure that a driver of a vehicle:

holds a valid driving licence for the vehicle; or
holds a valid public or professional driving permit;

fails, within seven days of the notice by the Regulatory Committee, to submit the permit by registered post or by hand to the Regulatory Committee;
fails, within 21 days after the expiry of a permit or after the number of journeys on the permit has been completed, to submit the permit and consignment note or passenger list to the Regulatory Committee;

shall be guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding ..... years or to both such fine and such imprisonment.

Forfeiture

32.(1) The court convicting any person of an offence under this Act involving the undertaking of unauthorized road transport may declare the vehicle used and any freight conveyed on it without authority, or the convicted person's rights in such vehicle or freight, to be forfeited to the State: Provided that such declaration shall not affect any rights which any person other than the convicted person may have to the vehicle or freight in question, if it is proved that such other person did not know-

that the said vehicle was being or would be used for unauthorized road transport or that he or she could not prevent such use; or
that the transport of the said freight constituted or would constitute unauthorized road transport or that he or she could not prevent the undertaking of such transport.

(2) Section 35(4) of the Criminal Procedure Act, 1977 (Act No 51 of 1977), shall apply with reference to any forfeiture under subsection (1).

Presumptions

33.(1) In any prosecution under this Act-

any person who has transported any freight or passenger by means of a vehicle or who has permitted the transport by such means of any passenger in addition to the driver of the vehicle or of any freight, shall be presumed to have undertaken cross-border road transport unless the contrary is proved;
if it is proved that freight or passengers were transported in contravention of this Act by means of a particular vehicle, the owner of the vehicle shall be presumed to have transported the freight or passengers, unless it is proved that he or she did not transport the freight or passengers and that the freight or passengers were transported without his or her knowledge and permission;
if it is proved that any freight was transported in contravention of this Act, the consignor and the owner of such freight, and any person who acted on behalf of such consignor or owner, shall be presumed so to have transported such freight, unless it is proved that such consignor, owner or person did not know that such freight was being so transported or could not prevent such freight from being so transported; and
a false document which purports to be a permit issued under this Act or a forged permit shall be presumed to have been made or forged by the owner of the vehicle or the permit holder whose particulars appear on the false document or forged permit, or to have been made or forged with the knowledge and connivance of the owner of the vehicle or the permit holder, unless the contrary is proved.

(2) Whenever any manager, agent or employee of the holder of a permit does or omits to do any act which it would be an offence under this Act for such holder to do or omit to do, such holder shall unless it is proved that-

he or she did not connive at or permit such act or omission;
he or she took all reasonable measures to prevent an act or omission of the nature in question; or
an act or omission, whether legal or illegal, of the character of the act or omission charged did not under any conditions or in any circumstances fall within the scope of the authority or the course of the employment of such manager, agent or employee,

be deemed himself or herself to have done or omitted to do that act, and for the purposes of paragraph (b) the fact that he or she forbade an act or omission of the nature in question shall not by itself be regarded as sufficient proof that he or she took all reasonable measures to prevent such act or omission.

Evidentiary matters

34.(1) Any document which purports to be a permit issued under this Act, or a copy of such a permit certified as a true copy by a person who purports to be an officer of the Regulatory Committee or the competent authority of any other country with which an agreement referred to in section 2(1) has been concluded, which issued the original permit, shall on its production by any person in any prosecution under this Act, be admissible in evidence and be adequate proof that it is such a permit which has been validly issued under this Act, or that it is a true copy of such a permit, as the case may be, and that every statement contained in it is correct.

(2) Any document which states that a vehicle described in it is, under the relevant South African law relating to the registration of vehicles or the similar law of a country with which the Republic has concluded an agreement in terms of section 2(1), registered in the name of a person named in it, and which purports to have been issued by the authority charged with the registration of vehicles under the said law at the place where such vehicle is registered under it, shall on its production by any person in any prosecution under this Act, be admissible in evidence and be adequate proof of the correctness of the statements contained in it.

Jurisdiction

35. A magistrate's court shall have jurisdiction to impose any penalty provided for in this Act.

Limitation of liability

36.(a) Any authorized officer or the employer of any authorized officer shall not be liable by reason of any act done in good faith by any authorized officer or the employer of any authorized officer in terms of this Act.

(b) The holder of a permit or any employee of such holder who is in charge of the vehicle to which such permit relates, shall not be liable by reason of any act done in good faith by such holder or employee in accordance with any condition or requirement contained in that permit, relating to the conveyance of passengers in such vehicle or any portion of it.

Points demerit system

37. The Regulatory Committee may, in accordance with the provisions of a points demerit system as prescribed, where a permitholder or any person in his or her employ fails to comply with or contravenes a prescribed provision of this Act or of any other prescribed legislation in the Republic or whilst in any other country under a permit issued by the Regulatory Committee, or upon communication of information to that effect from the competent authority of the country in whose territory the contravention took place-

warn a permitholder in writing of the contravention that took place;
suspend the permit held by such permitholder for a period not exceeding three months: Provided that the Regulatory Committee may at any later time, on application by such permitholder or person in his employ, terminate such suspension subject to such conditions as the Regulatory Committee may deem fit to impose;
revoke the permit of such permitholder in respect of one or a number of journeys or routes, or revoke it subject to such conditions as the Regulatory Committee may deem fit to impose;
declare such permitholder, either permanently or for a stated period, unfit to apply for a permit in respect of one or more cross-border routes;
amend the conditions and requirements applicable to the permit held by such permitholder, or determine such new conditions and requirements as the Regulatory Committee may deem fit to impose; or
allow the permitholder or person in his employ to rectify such failure or contravention subject to such conditions as the Regulatory Committee may deem fit to impose.

Co-operation between Board and cross-border road transport industry

38. The Board may on the prescribed guidelines, make recommendations to the Minister aimed at incrementally introducing appropriate levels of self-regulation for the cross-border road transport industry.

PART 9

Procedural Matters

Regulations

39. The Minister, after consulting the Board, may make regulations, not inconsistent with this Act relating to-

the designation and powers of authorized officers;
anything that shall or may be prescribed in terms of this Act; and
any other matter that the Minister considers necessary or expedient to prescribe or govern by 15 January 1997regulation in order to achieve the primary objects of this Act.

Repeal of legislation and savings

40.(1) Sections ....... and ....... of the Road Transportation Act, 1977 (Act No. 74 of 1977), are hereby repealed in so far as they are applied in respect of cross-border transport.

(2) The Transport Deregulation Act, 1988 (Act No. 80 of 1988), with the exception of section 5 is hereby repealed: Provided that Schedule A to that Act shall continue in force as Schedule A of this Act as if it were an agreement entered into under section 2(1).

(3) Any unrepealed provisions of the Transport (Co-ordination) Act, 1948 (Act No. 44 of 1948), is hereby repealed.

Short title and commencement

41. This Act shall be called the Cross-border Road Transport Act, 1997, and shall come into operation on a date fixed by the President by proclamation in the Gazette.

Index

ANNEXURE C WORKING DOCUMENT FOR CROSS-BORDER BILL