By Mark Mfikoe, National Director, ECA(SA)

You would be forgiven for thinking that there is an amnesty of sorts regarding the illegal and unsafe use of construction vehicles in South Africa. I constantly ask myself why the Minister of Labour published construction regulations in February 2014 if there was neither intention nor commitment to enforce compliance with their stated objectives.

Read this article and then look at South Africa’s roads and see how many vehicles, used for construction purposes, are carrying labourers and breaking almost every single provision. Many of the people carried on these vehicles are considered to be ‘prestigious pearls’ in their homes back in the forgotten villages of Limpopo, Eastern Cape, Northwest and KwaZulu-Natal who have come to the city to ensure that those they have left behind have a chance at survival.

I grew up in such a village, having been raised in Jericho next to Brits. If any of these guys die as a result of an accident, accelerated by illegal use of construction vehicles, the consequences are absolutely dire. An entire family could be sacrificed. So, when you read this article and begin to think how your bottom line would be compromised, think again!

Construction regulations

The usage of construction vehicles is regulated by clause 23 of the construction regulations. The regulations specify that such vehicles must be of an acceptable design and construction, be maintained in good working order and, most importantly, they must be used in accordance with their design and the intention for which they were designed, having due regard to safety and health. Is a lorry or bakkie designed for purposes of carrying people in its carrying compartment? Definitely not, the carrying area is designed to carry goods, not people and definitely not workers who are expected to perform commercially useful functions.

Specifically, construction regulation 23(2)(i) states that the contractor must ensure that vehicles used to transport employees have seats firmly secured and adequate for the number of employees to be carried. If this regulation was complied with or enforced by an interested law enforcement agency, the sore sight that confronts us every day on South African roads of workers packed like sardines at the back of bakkies and trucks would not have been allowed to occur. Better still, the bodies of human beings strewn across the street when some of these vehicles are involved in accidents would not happen or would be minimised. The enforcement responsibility rests with the inspectors of the Department of Labour. Do they even know or do they only concentrate on inspecting safety files on construction sites at best?

National Road Traffic Act

The story is not as simple as it appears to be, though. Construction regulation 23(2)(j) curiously also states that all construction vehicles travelling, working or operating on public roads must comply with the requirements of the National Road Traffic Act of 1996. Regulation 247 of the National Road Traffic Regulations specifies that, “no person shall operate on a public road, a goods vehicle conveying persons unless that portion of the vehicle in which such persons  are being conveyed is enclosed to a height of (a) at least 350mm above the surface on which that person is seated; or (b) at least 900 mm above the surface on which such person is standing, in a manner and with a material of sufficient strength to prevent such person from falling from such vehicle when it is in motion”.

It could be argued that the National Traffic Act provides pointers as to what the design of the vehicle in line with its purpose is. Some may say there is a conflict between these regulations and this must be resolved so there is one law for all of us in the country. The sheer number of lives lost on the road is a persuasive argument to go this route.

People are not goods

My view is that the National Road Traffic Regulations specify circumstances under which persons may be carried on goods vehicles. The purpose for which the vehicles are designed and made is to carry goods. People are not goods, whether they are from Jericho, Sandton or Bulawayo! Construction Regulation 23 says if the vehicle is not designed to carry people, no people should be loaded on it. The National Road Traffic Act provides an exception but this applies only if the passengers are not carried for reward. My interpretation is that the construction vehicle carries people for reward even if the reward is not that each person would pay the driver but rather that the contractor would be rewarded by his client for taking them to work. Contractors charge clients for transport and they get rewarded for transporting people to work. I argue, therefore, that the exception does not apply to construction vehicles.

It is further my view that irrespective of the legal position, morality and ubuntu should prevent us from subjecting human beings to the dangers occasioned by and associated with carrying people as goods at the back of bakkies. One day, somebody is going to be sued with dire consequences. There is consideration within the trade union movement in the construction space to focus on these things but my belief is that, as contractors, we should do the right thing.


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