LHD VEHICLES - a further update
Posted: Mon Jun 22, 2009 2:21 pm
> Dear Friends
>
> The recent proposals regulating the use and licensing of LHD vehicles were
> published for comment in the Government Gazette on the 27th May 2009 where
> the operation of such vehicles are permitted provided that they were
> "registered or licensed in the Republic into any persons name before the
> 23
> rd July 2004"
>
> Whilst I believe this is a significant victory, having regard to
> challenges
> that were initially confronted by where onerous provisions that prohibited
> the use of such vehicles, have been overcome, I still have reservations
> because its then leaves certain de facto owners of left hand drive
> vehicles
> in no-mans land, so to speak. I refer obviously to those who were given
> SABS approval to import such vehicles, after such date, and who have since
> imported and sought to licensed them in a quandary, because they cannot
> now
> comply with the legislation proposed and are currently divested of their
> rights of ownership.
>
> Essentially the SABS would have issued a permit and certified that the LHD
> vehicle imported by a proposed owner to be compliant with their
> regulations
> , yet the vehicle in terms of the legislation referred to, cannot be
> validly licensed and the importer is thereby is divested of their rights
> of
> ownership, namely to register, operate or sell the vehicle. The dichotomy
> here is that the DOT's, presumption that these vehicles are "unsafe" is in
> stark contrast to the SABS's views, and hence the legislation remains
> onerous in some quarters.
>
> It is certainly arguable that by the SABS issuing a permit allowing the
> importation of a LHD vehicle and approving them as "safe" that a
> legitimate
> expectation has been created that the rights conferred by ownership could
> pass to the importer of such vehicle and would certainly give rise to
> constitutional debate, and at very least a claim for damages based on the
> representations made. Most owners of such vehicles were not aware of the
> prohibitive legislation, and placed reliance on the permits issued by the
> SABS and are innocent parties in these transactions
>
> Our view has been that a contemporaneous date ought to have been inserted
> (i.e a cut off date in 2009 WHEREAFTER NO FURTHER VEHICLES COULD BE
> IMPORTED AND THE SABS WOULD NOT LEGITIMATELY BE ABLE TO ISSUE PERMITS IN
> COLLABORATION WITH THE DOT, AS THEY HAVE INDEPENDENTLY DONE) in the
> legislation rather than a retrospective "effective date" and this would
> then ensure that those who have imported LHD vehicles with SABS approval,
> after the 2004 date, simply fall into the net of the legislation. In fact
> some have been issued permits authorizing importation as recently as
> January 2009 !
>
> As the positions stands, should the proposed 2004 date be ratified, then
> an
> entirely separate set of Acts would need to be drafted by the Legislature
> to apply to an importer of LHD vehicle, with SABS approval, after such
> date, to define their position. This is an unnecessary complication in the
> process and in the long term would splinter issues and result in more
> argument, uncertainty and the further engagement of the DOT in liasion
> with
> the SABS, and de facto owners, to resolve this issue separately.
>
> Them issues raised above will form the basis of our comments to the
> proposed legislation.
>
> Regards
>
>
>
>
>
> Shahir Ramdass
> Ramdass and Associates
> Attorneys, Notaries and Conveyancers
> 308 Cowey Road
> Berea
> Durban
> 4000
> Docex 5 Morningside
> Telephone : 031-3122411
> Telefax : 031-3122730
> Mobile : 073 234 3835
> Fax to email : 0866200960