It is important to analyse the legal and policy framework in respect of hazardous materials passing through municipalities and analyse who is responsible between the three spheres of government in as far as the carriage of hazardous materials is concerned. This article examines the responsibilities of municipalities to avoid tragedies such as the Boksburg explosion. It is argued that municipalities sometimes fail to put clearly visible road signs, which compromises public safety.

A brief summary of the facts

On 24 December 2022, tragedy struck Boksburg located in South Africa’s fourth largest metropolitan municipality, Ekurhuleni, in Gauteng. A truck carrying liquified gas was trapped under a bridge.  Although it seems that the driver of the truck can still be held criminally liable despite charges being withdrawn by the National Prosecution Authority, it is important to note that the driver made efforts to report the incident at the nearest police station about an hour before the truck caught flames and exploded. An investigation reveals that the municipality’s fire brigade and police’s response to the report was not swift and efficient. Thus, resulting in members of the public not prevented from coming close to the truck, even after it caught alight. Most of the victims were unaware as to how dangerous it was to be near the truck. Videos circulating on social media showed two explosions in less than 20 minutes.

The tragedy shows that there is a need to protect the safety of the public in areas where hazardous materials are likely to pass through.  A total of 41 lives including 12 healthcare workers from the nearby Tambo memorial hospital were lost. This could have been avoided if the Integrated Development Plan (IDP) and the Spatial Development Plan of the Municipality was fully implemented. This tragedy strongly suggests that the Municipality must be held to account for road signs that are vague and rusted because they confuse truck drivers that may not know these municipal roads intimately. 

Position of applicable law

Chapter 5 of the Municipal Systems Act of 2000 instructs each municipality to conduct integrated development planning that is developmentally orientated. Such planning must meet the objectives of the local government set out in section 152 of the Constitution and give effect to the developmental duties of section 153 of the Constitution.  In terms of section 24 (1) of the Municipal Systems Act, the municipality must align and complement its development plans and strategies to give effect to the principles of co-operative government as set out in the Constitution. Section 24(3) of the Act instructs municipalities to obey national and provincial planning requirements by aligning their laws with this legislation.

IDPs must be reviewed annually in terms of section 34(a)(i) of the Municipal Systems Act and the municipal council may amend its IDP when needed in terms of section 34(b) of the Act.  IDPs are the key to ensuring the integration of municipal plans and programmes with those of the national and provincial spheres of government. Various national policies were passed to which municipalities had to align with their IDPs. The National Development Plan (NDP) is one example. The NDP states that South Africa has a missed a generation of capital investment in roads, rail, ports, electricity, water, sanitation, public transport and housing. To grow faster and in a more inclusive manner, the country needs to invest in these sectors. The NDP further states that greater autonomy on fiscal and political powers must be given to cities to oversee and manage the upgrading of human settlements, transport and spatial planning. Spatial planning must include roads and spatial plans considering the safe passage of vehicles carrying hazardous materials.

Legislation applicable to the transport of hazardous materials includes the Occupational Health and Safety Act of 1993, Hazardous Chemical Substances Regulations of 1995 and Major Hazard Installation Regulations of 2001. Municipal IDPs are unfortunately not aligned with these in a way that ensures the safety of people both in public and private spaces in respect of transporting hazardous materials. The South African National Standards: The Identification and classification of dangerous goods for transport SANS 10228: 2010 does not mention municipalities as key stakeholders in the regulation or enforcement of the carriage of hazardous goods that pass through their jurisdictions. One may infer that municipalities are generally ill-prepared for disasters that emanate from hazardous materials, such as the Boksburg disaster. The main departments in a municipality, dealing with the preparedness and compliance with safety relating to the transportation of hazardous materials are the Metropolitan Police Services and the Emergency Management Services. These two departments are vital to community safety.

With particular emphasis on roads, housing and community safety, it is essential to consider that, where this Boksburg haulage truck explosion took place, a number of homes on the roadside were damaged. The Municipality is partly to blame for these damages. It can be argued that the Municipality should have made sure that the road signs that show the maximum length, width and height of vehicles passing through bridges are replaced if they are unclear or blurred. A picture of the street, taken in October 2022, where the truck crossed within the vicinity of the accident shows that there is no signpost prohibiting any trucks of a certain height or width from crossing the area. Some of the signs are smudged from rust. The Municipality has a duty in terms of service delivery to ensure that signs for vehicle users are clear enough to exercise the necessary precaution. There is jurisprudence, in which municipalities were held liable, even if partially, for damages caused by holes in pavements (see, for example, Municipality of Cape Town v Gladys Majorie Bakkerud). It is argued that the Boksburg gas explosion presents a similar scenario. 

Recommendations 

I urge national, provincial and local government to consider the following points:

• Revision of the SANS 10228: 2010 to deal with explicit wording that refers to the carriage of hazardous materials within the municipal boundaries.
• Explicit wording in municipal IDPs dealing with liability in the event of tragic incidents on roads where hazardous materials such as gas or fuel are being carried.
• Road signs that clearly show height and width restrictions on underbridges.
• Road signs prohibiting vehicles carrying certain hazardous materials (such as flammable substances like gas) within the vicinity of institutions such as schools, hospitals and residential homes.
• A disaster preparedness strategy for disasters related to the carriage of dangerous goods.
• Hotline numbers for drivers and their employers to immediately report accidents or potentially dangerous incidents involving the transportation of hazardous materials
• Regular workshops with company employees carrying hazardous materials. 
• Communication to companies of routes that can be used to carry hazardous materials and penalties for not complying with the designated routes
• Emergency budget for the repair of any infrastructure, be it private housing or commercial businesses, within the vicinity of the tragic Boksburg accident
• Adequate compensation to victims who have no fault in accidents emanating from the carriage of hazardous materials

The above suggestions, if implemented, can prevent the unnecessary loss of human lives, and horrific injuries to survivors and trauma.

By Hoitsimolimo Mutlokwa, PhD Candidate: School of Law, Graduate School of Social Sciences and Humanities, KOÇ University, Türkiye