REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number : 571 / 03
In the matter between
L CRONJÉ APPELLANT
and
THE STATE RESPONDENT
Coram : NUGENT JA, ERASMUS and PONNAN AJJA
Date of hearing : 17 AUGUST 2004
Date of delivery : 10 SEPTEMBER 2004
SUMMARY
Road Traffic Regulations – Regulati on 232 does not purport to lay down a
standard for the determination of the actual mass or massloa d of a vehicle –
whether the maximum permi ssible mass or massload has been exceeded is a
question of fact.
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J U D G M E N T
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PONNAN AJA
[1] The appellant was convicted in the Magistrates' Court on two
charges, being contraventions, respect ively, of regulati ons 234 and 236
of the National Road Traffic Regulations, 2000,1 and both offences being
taken as one for the pu rposes of sentence, he was sentenced to a fine
of R3 000,00 or in default of payment thereof to imprisonment for a term
6 months. An appeal to the High C ourt (Pretoria) in respect of each
conviction only, not having met with any success, the appeal now serves
before this Court with the leave of the court a quo.
[2] Both offences were allegedly committed on 24 October 2002 on
the N4, a public road. The state al leged that the appel lant operated a
bus with registration letters and numbers CWV 330 GP in circumstances
where the permissible maximum axle mass load of the vehicle of
10 200 kg was exceeded in contravent ion of regulation 234 in that the
actual mass load was 12 020 kg (C harge 1) and that the permissible
vehicle mass of the vehicle of 16 7 00 kg was exceeded in contravention
of regulation 236 in that the actual mass was 18 260 kg (Charge 2).
1 Promulgated by the Minister of Transport under section 75 of the National Road Traffic Act 93 of
1996 in Government Gazette no R225, GG no 20963 of 17 March 2000.
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[3] At the commencement of the tria l, a document (Exhibit A) was
adduced on behalf of t he appellant in which the following formal
admissions in terms of section 220 of the Criminal Procedure Act 51 of
1977, were recorded:
'1 On 25 October 2002 the accused operated a bus with licence number
CWV 330 GP on the N4 a public road in the district of Middleburg.
2 The bus was a Mercedes Benz Passenger Coach issued with a
roadworthy certificate authorising the bus to carry 45 passengers
excluding the driver and fitted with pneumatic tyres.
3 The information plate of the bus reflected the following
information
Gross axle mass (front): 6 500 kg
Gross axle mass (rear): 20 500 kg
Gross vehicle mass: 27 000 kg.
4 The notice in terms of regulat ion 245 reflected the following
information:
45 seated passengers
0 standing passengers.
5 It is common cause that the Stat e complied with the provisions of
determining the mass of the axles as well as the vehicle, in terms of the
National Road Traffic Act, 1996 [Act 93 of 1996] and Regulations,
subject to paragraph 8.
6 It is common cause that the accus ed complied with the provisions of
the National Road Traffic Act, 1996 and Regulations, subject to
paragraph 8.
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7 The mass of the front axle accord ing to the mass-measuring bridge
was 6 240 kg, the rear axle 12 020 kg and the total mass 18 260 kg,
which is accepted as correct.
8 The dispute to be determined by the C ourt is, whether in law, the mass
of a bus (passenger vehicle) must be determined by applying the
prescribed statutory mass as determined in regulation 232 or the
permissible maximum masses in terms of regulation 234 to regulation
237 by means of determining the actual mass on a mass-measuring
bridge.
9 In the premises, the a ccused also dispute[s] mens rea in relation to the
argument in paragraph 8.’
[4] Section 75 of the Act empowers the Minister to make regulations
inter alia regarding:
(i) The maximum mass, laden or unl aden, of any vehicle ... and the
maximum mass of any vehicle or any part thereof supported by the
road or any specified area thereof, when any such vehicle is operated
on a public road (ss d);
(ii) The regulation of t he operation and control of any vehicle on a public
road, its construction ..., mass ..., body and load and the conditions on
which it may be used (ss m);
(iii) The protection of any public r oad, the mass, tyres and load of any
vehicle in relation to any specified bridge or ferry,... (ss o);
(iv) The determination of the number of passengers for the transport of
which a certain class of motor vehicle is adapted and the number which
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may be transported, the general sa fety, comfort and convenience of
passengers carried on or by such motor vehicle ... (ss s); and
(v) The additional duties for operators of specified classes of motor
vehicles or operators engaged in acti vities which r equire additional
safety measures for the protection of the public (ss z).
[5] Regulation 232 headed ‘Mas s of person and luggage for
determining mass of load’, to the extent here relevant reads:
‘For the purposes of establishing t he maximum mass of persons and luggage
which may be conveyed on a motor vehicle –
(a) the mass of a person together with his or her personal effects shall, subject to
the provisions of regulation 231 be taken as 63 kg; and
(b) in the case of a motor vehicle which is fitted with –
(i) a luggage compartment, the mass of luggage shall be calculated at the
rate of 100 kg per cubic metre; or
(ii) a roof rack, the mass of luggage s hall be calculated at the rate of 75
kg per square metre of area of the roof rack:'
[6] Regulation 234 headed 'Permissible maximum axle massload of
vehicle', reads:
‘1 No person shall operate on an public road a minibus, bus,
tractor or goods vehicle if the permi ssible maximum axle massload of such
vehicle is exceeded.
2 The permissible maximum axle massload of a vehicle shall be
the least of the mass limits determined by –
(a) Regulation 238 (1) in respect of a vehicle fitted with pneumatic tyres …
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(b) Regulation 239 (1) (a) (ii); and
(c) Regulation 240 (a), (b) and (c).’
Regulation 236 headed 'Permissible maximum vehicle mass', reads:
‘1 No person shall operat e on a public road a minibus, bus, tractor
or goods vehicle if the permissible maxi mum vehicle mass of such vehicle is
exceeded.
2 The permissible maximum vehicle mass of a vehicle shall be the
least of the mass limits determined by –
(a) the sum of all the permissi ble maximum axle massloads and
axle unit massloads of the vehicle as contemplated in
regulations 234 and 235;
(b) regulation 239 (1) (a) (i);
(c) regulation 239 (2);
(d) regulation 239 (3); and
(e) regulation 241:
Provided that the permissible maximum vehicle mass of such vehicle shall not
exceed 56 000 kilograms.’
[7] It was submitted on behalf of th e appellant that for the purpose of
determining whether those reg ulations have been contravened
regulation 232 requires it to be a ssumed that each passenger on the
vehicle at the relevant time weighs no more than 63 kg, and that the
luggage on the vehicle weighs no more than 100 kg per cubic metre of
luggage space. The effect of the subm ission is that regulations 234 and
236 will not be contravened if the vehicle is carrying no more than the
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permissible number of passengers (in th is case 45) irrespective of the
actual massload on the axles and the actual mass of the vehicle.
[8] I do not agree. R egulation 232 does not purport to lay down a
standard for determining the actual ma ss of a vehicle, or the actual
massload on its axles. In terms it pu rports only to prescribe a norm for
establishing the 'maximum mass of persons and luggage' that may be
conveyed on a vehicle. Whether the maximum permissible mass of the
vehicle or the massload on the axles has been exceeded is a question of
fact, which regulation 232 does not purport to determi ne. The purpose
of regulation 232 is in stead to provide a norm for determining whether a
vehicle, once it is loaded, will ordi narily fall within certain standards that
are provided for in the regulations.
[9] Finally, it was argued on behalf of the appellant that he lacked
mens rea. The statutory contravention wa s admitted by him. No further
evidence was adduced by the appe llant. Regulations 245 (1) (b) (vii)
and (viii) prohibit the operation on a public road of a mini-bus, bus or
goods vehicle unless the permissibl e maximum vehicle mass referred to
in regulation 236 and the permissibl e maximum axle massload referred
to in regulation 234, expressed in kilograms, is displayed in a
conspicuous place on the vehicle in question. The appellant, who was a
bus operator, should have known, in each inst ance, the permissible
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maximum vehicle mass, as also , the permissible axle massload
permitted by the regulations for a vehi cle of the type driven by him. To
suggest in those circumstances, as happened in this case, that the State
had failed to establish the requisite mens rea on the part of the appellant
is wholly untenable. The tr ial court as also the court a quo quite
correctly rejected that argument as be ing devoid of any substance. In
that, neither can be faulted.
[10] It follows that the appeal must fa il and in the result it is dismissed
V M PONNAN
ACTING JUDGE OF APPEAL
CONCURRING:
NUGENT JA
ERASMUS AJA