South Africa: 1 January 2019 Deadline in Relation to Road Transportation of High Cube Containers

By Quintus van der Merwe, HOD and Tony Edwards, Partner in Shipping & Logistics 

The “high cube” 12 metre (40 foot) container is 30 centimetres (one foot) taller than the standard or general purpose 12 metre container.

The overall height of a normal road transport trailer loaded with a standard or general purpose container is approximately 4.3 metres, which corresponds to the maximum permissible height of 4.3 metres for vehicles travelling on South African public roads.  The maximum permissible height of 4.3 metres is prescribed by law, under the National Road Traffic Regulations.  The overall height of a normal road transport trailer loaded with a high cube container is approximately 4.6 metres, so on the face of it, carriage by road of high cube containers is unlawful in South Africa without an abnormal load permit.

This issue has a long history in South Africa, dating back to at least 2009, when the height restriction was suddenly enforced, and trucks carrying high cube containers were impounded by traffic authorities, particularly in the KwaZulu-Natal province within which the major container port of Durban is located.  The “ban” on the carriage by road of high cube containers was lifted, and after extensive consultation between the Road Freight Association (“RFA”) and the Department of Transport, a moratorium was put in place in terms of which road transport vehicles were exempted from the 4.3 metre height restriction for a period of 7 years.

The moratorium is due to expire on 1 January 2019.

The RFA, which counts among its approximately 445 members small and medium sized trucking companies, family owned businesses, owner-operators and most of South Africa’s large trucking companies, contends that the purpose of the moratorium was to give the Department of Transport time to commission a study into the feasibility and safety of carriage by road of high cube containers.  The RFA further contends that the Department of Transport failed to undertake the study; however, that its own study revealed there is no danger in transporting high cube containers on normal trailers at a height of 4.6 metres, there are no instability issues and existing normal trailers cannot be safely adapted or modified.

The Department of Transport’s position seems to be that the purpose of the moratorium was to give the road freight industry time to convert or replace their normal trailers so that these could carry high cube containers without exceeding the height restriction of 4.3 metres.  The RFA disputes this.  It contends that it is not possible to safely convert normal trailers by lowering the height and it is simply uneconomical for the industry to replace their fleets of normal trailers with purpose-built low bed trailers.

As matters stand, the moratorium is due to expire on 1 January 2019 from which date it will once again be unlawful to carry high cube containers on South African public roads, at least on normal road transport trailers without an abnormal load permit.

The issue has some far reaching consequences for the South African logistics industry, for instance:

1. High cube containers are increasingly the norm with around 5 million high cube containers moving through South Africa annually.
2. Containers are designed to meet world markets and are not designed specifically for South Africa.
3. The local road transport fleet has not changed its equipment since it was of the understanding that the moratorium was in place pending further investigations into the matter and it seems that it has never really been accepted that the law would be enforced.
4. It is not just a question of the road transport fleet having to change to use low bed trailers to meet the 4.3 metre height  requirement, but also the fact that (off)loading bays and docks, lifting equipment and the like would all have to be changed and modified to accommodate the maximum height configuration.
5. The need to change equipment to meet the law seems wasteful and without any real reason justifying such vast capital expenditure.
6. The quantity of high cube containers being imported is very significant and if the Department of Transport was to enforce the law this would lead to massive delays in the logistics chain given the shortage of available equipment to carry high cube containers.  The result would be massive costs being incurred across the supply chain.

One would need to investigate the potential remedy that might be sought in greater detail.  Our understanding is that this is not simply a decision that the Minister is refusing to make which is capable of review.  It is rather a case of whether the Minister can be prevented or interdicted from implementing the law as it stands, once the period of an exemption expires.  Put differently, it may lead to urgent applications seeking an order compelling the Minister to grant a further exemption against the background of all the information available.

The Minister could however regulate the transport by road of high cube containers by either granting an exemption (as was previously done) or by amending the National Road Traffic Regulations to provide for a permanent exemption in respect of high cube containers.

The RFA has made written representations to the South African Minister of Transport to either increase the maximum permissible height from 4.3 metres to 4.6 metres to accommodate high cube containers, or to regulate specifically for the road freight industry so as to permit them to transport high cube containers.

We are monitoring developments and will keep you advised.  In the meantime, a copy of the RFA’s representations dated 13 July 2018 to the South African Minister of Transport is available on request.

For more information on the above contact Quintus van der Merwe

qvdm@wylie.co.za

+27 31 575 7306

or

Tony Edwards

Edwards@wylie.co.za

+27 31 575 7307