“I lent my trailer to my brother-in-law, and whilst in his possession, my brother was involved in an accident. He did not stop or report the accident. I have received a notice to appear in court, as a witness identified only the trailer’s registration number, when my brother-in-law caused the accident. What should I do?”

In order to answer the above question, it is important to take note of Section 73 of the National Road Traffic Act (‘the NRTA’) resorts in Chapter XII of the Act, which is entitled ‘Presumptions and Legal Procedure’ in which a Presumption is created that the owner of the vehicle, drove or parked the vehicle.

This presumption is created when;

(1) Where in any prosecution in terms of the common law relating to the driving of a vehicle on a public road, or in terms of the Act, it is necessary to prove who was the driver of such vehicle, it shall be presumed, in the absence of evidence to the contrary, that such vehicle was driven by the owner thereof.

(2) Whenever a vehicle is parked in contravention of any provision of this Act, it shall be presumed, in the absence of evidence to the contrary, that such vehicle was parked by the owner thereof.

(3) For the purposes of subsections (1) and (2) and section 88 it shall be presumed, in the absence of evidence to the contrary, that, where the owner of the vehicle concerned is a corporate body, such vehicle was driven or parked, as contemplated in those subsections, or used as contemplated in that section by a director or servant of the corporate body in the exercise of his or her powers or in the carrying out of his or her duties as such director or servant or in furthering or endeavouring to further the interests of the corporate body.

It is also further important to note that the Act defines the following specifically;

“vehicle” means a device designed or adapted mainly to travel on wheels or crawler tracks and includes such a device which is connected with a draw-bar to a breakdown vehicle and is used as part of the towing equipment of a breakdown vehicle to support any axle or all the axles of a motor vehicle which is being salvaged other than such a device which moves solely on rails.

“motor vehicle” means any self-propelled vehicle and includes—

(a) a trailer; and

(b) a vehicle having pedals and an engine or an electric motor as an integral part thereof or attached thereto and which is designed or adapted to be propelled by means of such pedals, engine or motor, or both such pedals and engine or motor, but does not include— (i) any vehicle propelled by electrical power derived from storage batteries and which is controlled by a pedestrian; or (ii) any vehicle with a mass not exceeding 230 kilograms and specially designed and constructed, and not merely adapted, for the use of any person suffering from some physical defect or disability and used solely by such person “trailer” means a vehicle which is not self-propelled and which is designed or adapted to be drawn by a motor vehicle, but does not include a side-car attached to a motor cycle; 

 Thus, taking the abovementioned into consideration, it is clear that in terms of the Act, a presumption is created that you as the owner drove the vehicle at the time of the incident.

However, this presumption provides an incentive to the identified registered motor vehicle owner, if he or she did not commit the offence, to provide the particulars of the person who was using the vehicle at the relevant time.

 The Section was so included in the Act with the object to gather evidence as was noted by Cameron J (Mailula J concurring) in S v Meaker 1998 (8) BCLR 1038 (W), 1998 (2) SACR 73.

 What this means is that the owner of the vehicle is called upon to inform the Court as to whom drove the vehicle at the time of the incident as the presumption is there that either the owner drove the vehicle or has knowledge of whom drove the vehicle.

 In a recent matter BRACKENFELL TRAILER HIRE (PTY) LTD  & PASCAL CONSTANCE &  GERHARDUS ADRIAAN ODENDAL v THE MINISTER OF TRANSPORT, case number: 20825/2017 and 22046/2018, delivered on 22 March 2019, the High Court was called upon to make a declaratory order, relating to on a proper construction of sub-sections 73(1), (2) and (3) of the National Road Traffic Act 93 of 1996, the presumptions for which they provide are not applicable to trailers; alternatively,  (b) the prosecution under the National Road Traffic Act 93 of 1996 of the owner of a trailer for an offence involving the driving or parking of a vehicle towing or having parked that trailer is unlawful and inconsistent with the Constitution of the Republic of South Africa (Act 108 of 1996). The matter related to trailers being used by customers of the Brackenfell Trailer Hire (Pty) Ltd being fined for speeding fines and Brackenfell being left to pay for these fines.

The court found that;

“It is declared that in cases in which it is necessary for the prosecution to prove the identity of the driver of the vehicle used in the commission of an offence, whether at common law or in terms of the National Road Traffic Act 93 of 1996, the presumption in s 73(1) of the said Act operates only against the owner of such vehicle, and not against the owner of any trailer being towed by such vehicle at the time the offence is committed, unless the nature of the offence concerned pertains specifically to the operation of a ‘combination of motor vehicles’”

So, in summary and in answer to the question, “What should you do?”, the answer is simple, you will be required to inform the SAPS, that in actual fact, your brother-in-law drove the vehicle which caused the accident and provide the SAPS with his details in order for the matter to be instituted against your brother-in-law.