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Railway Safety

In recent times, railway has not been the preferred method of freightage. According to the Minister of Transport, in 2014/2015 89% of freight was transported by road, and only 11% by rail.1

The first railway in South Africa was only 3,2 km long. The route ran from Durban (where the old station building still stands2) to the Point, and the first official journey was on Tuesday 26 June 1860.3 Slightly more than a century later, in 1989, a South African train set a fairly remarkable world record. That is because it was 7,5 km long – it had 660 wagons, drawn by 16 locomotives, transporting iron ore from Sishen to Saldanha Bay.4

Fortunately, our safety record is fairly admirable. By death toll, the worst railway accident in South Africa, the Durban commuter train crash in 1965 (where 150 died) ranks only 40th on the disaster list.5 Still, that is too high.

The National Railway Safety Regulator Act 20026 provides for safety standards and regulatory practices aimed at the protection of persons, property and the environment, and falls under the authority of the Minister of Transport. The entity responsible for implementing the policy and provisions of the Act is the Railway Safety Regulator.7

A. Safety permits

  1. The Regulator is responsible for issuing permits for railway operations. No person may undertake any railway operation, or a component of a railway operation, without being in possession of an applicable safety permit.8

  2. The Regulator may impose any condition9 in a safety permit. The failure to comply with any such condition can lead to criminal conviction.10

  3. It is a crime to transfer a safety permit.11

B. Railway safety inspector

Inspectors are appointed by the Regulator’s Board of Directors primarily to carry out inspections and audit the safety management system of a railway operator.

  1. When a railway safety inspector enters any property to inspect or audit permitted railway operations, or the operator’s safety management system, the owner or manager and each employee working there must assist the inspector by furnishing him or her with answers to questions and also by providing him or her with any facility that the inspector may require. It is an offence to fail to do so.12

  2. A person questioned by an inspector must answer each question to the best of his or her ability and contravenes the Act if he fails to do so.13

  3. A person who holds a safety permit or any other document requested by the inspector must produce it14 and must:
    • allow the inspector to inspect the documents and make copies;15
    • allow the inspector to remove any articles or objects pointed out by him which relate to the object of the inspection;16
    • furnish the inspector with any information under that person’s control,17
    • and commits an offence if he fails to do so.
  4. If a railway safety inspector believes that a condition or activity is a threat or might be a threat to safe railway operations, he may issue a directive to the effect that:
    • the activity be restricted or suspended;18
    • conditions are placed on that activity;19
    • action be taken within a specified time to remove the threat.20

    Any person issued with a directive must comply with it or he commits an offence.

  5. Any person who hinders a railway safety inspector in the exercise of his powers or the performance of his duties is guilty of an offence.21

C. Railway occurrence reporting and investigations

  1. An operator must report to the Chief Executive Officer of the Regulator all railway occurrences (this means any accident or incident, including criminal activity) and commits an offence by not doing so.22

  2. An operator must investigate every railway occurrence in connection with its operations within a reasonable time after the occurrence. It is an offence not to do so.23

  3. The operator commits a crime if it refuses or fails to furnish any occurrence investigation report to the Regulator, upon request.24

  4. A person in control of the scene of a railway occurrence which is the subject of an investigation must:
    • allow the investigator to remove any articles or objects pointed out by the investigator or Regulator;
    • allow the inspection of documents requested by the investigator or the Regulator, including the making of copies thereof; and
    • furnish the investigator or the Regulator with any information which is under that person’s control,

    and commits a criminal offence by failing to do so.25

  5. Any person questioned by an investigator or the Regulator must answer each question to the best of his ability, and commits a crime by not doing so.26

D. Employer liability

  1. Whenever any act (or omission) by an employee or agent constitutes an offence in terms of the Act, and the act takes place with the express or implied permission of the employer or principal, that employer or principal, as the case may be, is also liable to conviction for that offence.27

  2. A person who is or was a director, trustee or member of a juristic person at the time of the commission by that juristic person of an offence in terms of this Act is himself guilty of the said offence.28

  1. www.timeslive.co.za – ‘SA looks to Restore Network to put Rail Back on Top’. 

  2. Thanks to Prof. Barend van Niekerk, law lecturer at Howard College, UKZN in the 1970s. In protest, he stood in front of the bulldozer, ready and waiting, and prevented its demolition. Barend was a well-known human rights activist who died, prematurely, in 1981. At his funeral service Alan Paton, who gave the eulogy, noted that the form of blessing used ‘asks God to give Barend peace, now and forever. Well I am not sure that Barend would want peace forever. Rather let us ask that he should rest for a week or two before he starts campaigning for improvements in heaven’. See Wikipedia.org/wiki/Barend_van_Niekerk, reproduced from Alan Paton, eulogy in van Niekerk’s The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World, Praeger Publishers, New York, 1987. 

  3. www.sahistory.org – ‘The First Railway Line in South Africa’. 

  4. www.engineeringnews.co.za – ‘South African Features Prominently in History of Rail Transport’. 

  5. Wikipedia - ‘List of Accidents and Disasters by Death toll’ https://en.wikipedia.org/wiki/List_of_accidents_and_disasters_by_death_toll

  6. As amended; the latest amendments effected by Act 69 of 2008. 

  7. The Regulator has its Head Office at Lake Buena Vista Building, 1 Gordon Hood Avenue, Centurion, Pretoria. 

  8. Section 22(1) read with section 45(1) 

  9. These can relate to a wide variety of aspects: the term of the permit, goods or passengers, geographical considerations, speed, traction, and any other technical or other matters necessary to ensure the safety or protection of persons with disabilities, other persons, property and the environment or to provide for the rehabilitation of any site. 

  10. Section 24(2) read with section 45(1). 

  11. Section 27 read with section 45(3). 

  12. Section 34(1). 

  13. Section 34(2). 

  14. Section 35. 

  15. Section 35(b). 

  16. Section 35(a). 

  17. Section 35(c). 

  18. Section 36(1)(a). 

  19. Section 36(1)(a). 

  20. Section 36(2)(b). 

  21. Section 45(1). 

  22. Section 37 read with section 45(3). 

  23. Section 38(1) read with section 45(3). 

  24. Section 38(2) read with section 45(3). 

  25. Section 38(11) read with section 45(3). 

  26. Section 38(12) read with section 45(3). 

  27. Section 48. 

  28. Section 49.