Bus operators fail to change flagging law

Staff Writer | Monday February 9, 2015 15:58

The operators, Mokoka Transport and Plant Hire, JNG Express and Thiphe Holdings, wanted the Court of Appeal to declare the Motor Vehicle Flagging Regulations unconstitutional. The regulations were introduced into the Road Traffic Act in 2010 by the then Minister of Transport and Communications, Frank Ramsden.

At the Court of Appeal, Justice John Foxcroft said the flagging regulations could not be described as an unconstitutional provision.  He said when delivering judgment that the regulations assisted the Director of Road,

Transport and Safety to carry out his duties under the Act so that owners of vehicles who have not paid outstanding fines can not renew their vehicle licences.

“The High Court was correct in finding that the flagging regulations were not unconstitutional. One cannot view the Flagging Regulations in a vacuum as the appellants wanted to attempt.

No coercion of payment from drivers or owners occurred at all. Offending vehicles were targeted for speeding and other contraventions of Road Traffic Act and this was very much in the public interest,” he said.

Foxcroft said it was clear that the duty imposed upon the owners of vehicles to clear outstanding fines owed to the Government relating to the use of their vehicles did not begin with the flagging regulations.

He explained that all that happened when the regulations came into force was that an authorised official was obliged to flag the offending vehicle after 21 days had elapsed, after the offence had been committed and without payment of the prescribed fine being made.

The operators argued the regulations contravened their constitutional and fundamental rights to be presumed innocent until proven guilty in a court of law.

The parties further argued that liability should not be attached to the owner of the defaulting vehicle, as is the case under the section in question, but rather with the driver of the vehicle.

They also wanted the Department of Road, Transport and Safety (DRTS) to first notify the owner of the vehicle that they wanted to flag.

They said this would prevent a situation where vehicle owners only get to learn that their vehicles have been flagged when they try to carry out a transaction against their vehicle.

Mokoka, who is the first applicant argued that he went to renew permits for two of his vehicles, but was barred from doing so “because the vehicles had been flagged, [and] was informed that he could not renew the permits unless the traffic charge for the flagged vehicles had been settled”.

The other two applicants’ said they suffered the same fate, not once, but several times. The operators argued that the regulations had not been passed through Parliament and as such were invalid.

While opposing the application, the Attorney General (AG) conceded that vehicle owners should be notified in time to cater for their right to defend themselves.