Decision

Decision for THULISIWE NCUBE T/A STETS LOGISTICS OK2021991

Published 15 September 2021

0.1 IN THE SOUTH EASTERN & METROPOLITAN TRAFFIC AREA

0.2 THULISIWE NCUBE T/A STETS LOGISTICS

OK2021991

0.3 FORMER TRANSPORT MANAGER DANNY CHALMERS

GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995

1. TRAFFIC COMMISSIONER’S WRITTEN DECISION

2. Background

The Licence was granted on 21 May 2019 authorising the use of one vehicle and one trailer. On 12 June 2019, vehicle PO13WLV was specified on the licence. This is a tractor unit and trailer combination. The original Transport Manager resigned on 9 August 2019 and Mr Danny Chalmers was subsequently nominated. Thulisiwe Ncube and Charles Moyo attended a DVSA new operator seminar on 4 September 2019 in Gillingham.

The operator was called to a Public Inquiry to be held on 30 March 2020 as Ms Ncube informed the Central Licensing Office that she was no longer using the operating centre at Ashford International Truckstop and was parking in Manchester. Ms Ncube sent a further letter stating that she was now using the Ashford International Truckstop operating centre and had not moved her operating centre. It was suggested that in fact the vehicle was only parked in Manchester during rest periods overnight. An application to nominate Danny Chalmers as Transport Manager was also to be considered. Due to the COVID crisis the Public Inquiry was postponed. Following a case management review by me, the Operator was asked to provide confirmation that the vehicle is still being parked at the authorised operating centre, evidence of CPC refresher for Mr Chalmers, financial evidence and an explanation of the role of Charles Moyo whose name appears in the emails sent by the operator. The operator provided the required evidence, including an explanation that Mr Moyo was her partner but not a business partner and not involved in the business. The Traffic Commissioner vacated the public inquiry.

On the 22 July 2020 an application was made online to increase the authorisation to three vehicles and three trailers at the existing operating centre. Enquiries linked to that application raised concerns in relation to financial standing, stability around the Transport Manager role and whether the Operator was complying with her obligations under the Licence by reason of adverse Vehicle Examiner and Traffic Examiner reports. Accordingly, I determined that the Operator and by then former Transport Manager Mr Chalmers should be called to Public Inquiry, with the application to increase authorisation also considered at the hearing. Finally, the Transport Manager who had replaced Mr Chalmers also resigned (on 24 February 2021). I granted a period a grace until the date of the Public Inquiry. An application for a new Transport Manager only became complete on the morning of the Public Inquiry but I confirmed that I would consider the matter at the same time.

3. Hearing

The Public Inquiry was listed for 23 June 2021 at 10am at the Public Inquiry Room, 4th Floor, Ivy House, Ivy Terrace, Eastbourne, BN21 4QT. Due to COVID restrictions, some attended in person, and some attended via Microsoft Teams. Ms Ncube attended in person with Mr Charles Moyo. He was called as a witness by Ms Ncube, along with Steven Zwinkels (Transport Consultant) and Ms Mihaela Minechuta (proposed Transport Manager). The former Transport Manager Mr Danny Chalmers attended in person along with his solicitor Ms Laura Newton. DVSA Vehicle Examiner Mr Wesley Ostridge gave evidence via Microsoft Teams.

At the conclusion of the hearing I gave my decision in relation to Mr Danny Chalmers, namely that his good repute was severely tarnished but not lost. I made it clear that his good repute hung by a gossamer thread. In relation to the Operator, I advised that I would issue a written decision and would endeavour to do so within 28 days. As it had been a long day, I also allowed Ms Ncube to send in any further written representations that she would want to by the end of the week.

4. Documents and Evidence

Prior to making this decision I have considered the following:- a. Public Inquiry brief for the hearing on 23 June 2021;

b. Vehicle Examiners addendum report on evidence received on 10 June 2021;

c. Vehicle Examiners addendum report on evidence received on 18 June 2021;

d. Documents sent by the Operator’s Transport Consultant to my office under cover of an email dated 9 June 2021 at 20:28;

e. Documents sent by the Operator’s Transport Consultant to my office under cover of an email dated 16 June 2021 at 15:15;

f. Documents sent by the Operator’s Transport Consultant to my office under cover of an email dated 18 June 2021 at 10:35;

g. Witness Statement of Mr Danny Chalmers dated 17 June 2021;

h. My handwritten contemporaneous notes from the hearing;

i. Letter from the Operator received 25/06/2021;

j. South Bucks District Council and another V Porter(FC) (2004) UKHL33, English v Emery Reimbold & Strick Ltd [2002 EWCA Civ 605 and Bradley Fold Travel Limited & Peter Wright v Secretary of State for Transport [2010] EWCA Civ 695 in relation to written decisions generally;

k. Upper Tribunal Decisions and other guidance I consider relevant to this determination as listed elsewhere in this Decision; and

l. The Senior Traffic Commissioner’s Statutory Guidance and Statutory Directions (‘SGSD) current versions.

5. Issues

Ms Ncube did not challenge the written and oral evidence in the Public Inquiry bundle and that subsequently served and heard. Mr Chalmers did not challenge the oral and written evidence of DVSA in relation to his period as Transport Manager. It falls for me to consider what regulatory action to take, if any. If the Licence continues then the variation application and Transport Manager application will require formal consideration.

6. Approach

From March 2020 Operators have been challenged, along with the rest of the nation, on coping with the unique circumstances of Covid-19. On 17 March 2020, a full week before the national lockdown the Senior Traffic Commissioner issued an emergency SGSD setting out detailed legal and practical advice for Commissioners, Operators, Transport Managers and those who support them. It includes the following:

What is physically possible may change during the course of the outbreak, but the Office of the Traffic Commissioner has issued additional guidance to operators throughout the course of the restrictions to date:
https://www.gov.uk/government/publications/advice-heavy-goods-and-public-service-vehicle-operators-covid-19 The Senior Traffic Commissioners directs that this must now form part of the decision-making process. In considering the positive and negative aspects of an operator’s approach during the lockdown and subsequent restrictions, traffic commissioners may also have regard to:

• the employment of effective management based on sound risk analysis for instance in the management of maintenance;

• a risk-based approach to the testing of vehicles in prioritising the inspection of older and/or historically problematic vehicles in the transition back to business as usual…

These should be supported by evidence.

I have not set out all of the evidence but it is a matter of record in the papers and by way of transcript. I have referred to material evidence relevant to my findings.

7. Consideration and Findings

7.1 DVSA Evidence

DVSA originally conducted a maintenance Desk Based Assessment but the findings were to a level of concern requiring an in person investigation. The communication started on 13 October 2020 and culminated in an agreed visit date of 16 November 2020. The outcome of that investigation noted significant failings across the maintenance regime. By way of example, PMI intervals exceeded by up to 17 weeks (i.e. 23 weeks between inspections), incomplete PMIs including some inspection manual items not marked as checked and rectification work and tyre pressures not always recorded. In addition, the driver walkaround check system appeared inadequate in light of the prohibition history and there was no obvious auditing taking place. Of particular disquiet, particularly through the pandemic, was that there was no VOR system and with it the possibility of more vehicles being used than authorised.

Prior to the Public Inquiry I requested DVSA Remote Enforcement Office undertake a Traffic Examiner Desk Based Assessment to see whether drivers hours, tachograph, working time directive and similar systems were robust. The outcome of that assessment is disappointing. In particular, driving licences were only checked on first employment. There was no evidence of driver training and the raw data for driver and vehicle unit was not produced.

The Operator was required to email certain information to the Vehicle Examiner at least 14 days prior to the Public Inquiry to enable the Examiner to assess whether assurances given after the November 2020 maintenance investigation had been followed through. The records required were:-

i. The original maintenance records for all vehicles since 17 November 2020 to include at least:

• preventative maintenance inspection records including detailed brake test reports;

• driver daily defect reports;

• invoices for work done;

• wheel removal/retorque records;

ii. The Forward Planner (or photographic evidence thereof if large);

Even with the assistance of a Transport Consultant, the Operator was unable to send everything that was required on the first attempt. That is why I have effectively two updates from the Vehicle Examiner. The first update was sent to the Operator on 15 June 2021 at 15:40. On 18 June 2021 the Transport Consultant emailed my office and the Vehicle Examiner and included the following “We have been working to get some of the documents that we knew were missing from the workshop. We also have had the vehicle and trailer in at PCL Maidstone for MOT and to resolve numerous longer term damage”. In fact the original email failed to include PMI record for the current specified vehicle and its trailer C295345. On the 18 June 2021 a copy of the MOT certificate for the trailer was included. The PMIs were dated 14 April 2021 and 28 May 2021 respectively, although the MOT for the trailer is 17 June 2021. The trailer PMI was signed off on the 28 May 2021 and should have been in the Operator’s possession since that date. Further, the Operator failed to send a single driver defect sheet or any evidence of torque/re-torque systems. The PMIs that were sent still had multiple issues, including the vehicle registration not recorded on one sheet, kilometres not recorded on one sheet, a defect not recorded as rectified and then the same defect reported on the next PMI. Further one record had a number of boxes not checked as completed and not all sections signed off as rectified. Similarly, the trailer also had multiple defects including side guard damage, rear underrun damage, multiple lights not working and certificate of road worthiness not signed off.

7.2 Operator’s and former Transport Manager’s evidence

7.3 Use of more vehicles than authorised

From observing Ms Ncube and listing to her evidence I did not find her a credible or compelling witness. Of particular concern was her evidence in relation to the use of more vehicle than authorised materially changed after a comfort break and she had the opportunity to discuss matters with Mr Moyo.

Vehicle GXZ2858 had a roadside encounter with DVSA at Chilcomb on the A31 in Hampshire on 7 August 2020. Whilst there were no infringements on that day a historical offence on 27 July 2020 was noted. This vehicle was not specified on the Operators Licence and there was no margin. However, the encounter was recorded against this Operator either as a result of what the driver said or a communication with Ms Ncube. The Operator does not deny that the vehicle was in use by her on those two dates. The vehicle was purchased in Ireland on 17 June 2020 and then brought over to the operating centre. It was not until the 15 October 2020 that PO13WLV was removed at GXZ2858 added. Vehicles must be specified within one month of coming into possession (s.5(6) of the 1995 Act).

Before the break, Ms Ncube admitted that both vehicles were in use because the application had already been made to increase the authorisation and there was a business need. In fact, the application was only made on the 22 July 2020 (5 days before the infringement). Ms Ncube also admitted that vehicle GXZ2858 did not have a first use preventative maintenance inspection. After the break, Ms Ncube’s evidence changed to say that GXZ2858 was only used on the days when PO13WXL was off road. That is to say there was still a breach because PO13WXL should have been removed when GXZ2858 was in use, but it was not a case of operating two vehicles at the same time. She also said that after she received the vehicle disc for GXZ2858 she had assumed that the variation application to increase authorisation had been approved. There is simply no good reason for such an assumption. A disc arrived because the vehicle was swapped on to the Licence on the 15 October 2020. The Operator has self-service and there was absolutely nothing on the VOL record to indicate or hint that the Operator was authorised for more than one vehicle and one trailer. Ms Ncube tells me that this was down to ignorance on her part. I disagree. She had attended the New Operator Seminar just the year before. Further she has deemed knowledge of all the advice and guidance in the public domain 2012/030 MGM Haulage & Recycling Limited.

I recalled at this point that there is a discrepancy between Ms Ncube and Mr Chalmers on when he became aware that the Operator had two vehicles in possession. Ms Ncube says from when it was purchased and Mr Chalmers says from October 2020. Whichever it is Ms Ncube accepts that at no point did she tell Mr Chalmers or hand him anything to suggest that two vehicles were in use whether together or swapped over.

7.4 Use of more vehicles than authorised

7.5 Maintenance

It is hard to describe just how far below the required standards the maintenance regime is. The Operator and Transport Manager referred to difficulties because of COVID but I have already referred to the Traffic Commissioner’s approach set out in paragraph 11. Neither Ms Ncube or Mr Chalmers went to that advice and guidance. There is nothing to suggest that the risks posed by COVID, Ms Ncube’s shift patterns, safety of vulnerable partners etc was risk managed. Apart from a short hiatus from the end of March to the end of May, transport operations did not cease. During that period the Operator also managed to source and arrange to relocate a vehicle from Ireland I am told that PO13WLV had a maintenance inspection in August 2020 because Mr Chalmers was present. There is no paperwork. There is lots of missing paperwork and even for the Public Inquiry two PMIs had to be sourced from the maintenance contractor. Ms Ncube said that she may have had them by email and deleted them but she wasn’t sure. In any event Ms Ncube admitted that she was receiving the PMI sheets a few days after the PMIs took place which of itself poses a significant risk to road safety. When I asked why PMIs might have been missed Ms Ncube accepted that she may have forgotten to book them.

Both Ms Ncube and Mr Chalmers accuse each other of not making themselves available, not making records available, not providing advice and guidance or receiving advice and guidance and not following it. The problem for both of them is that none of this is recorded. There were no regular meetings or notes of any conversations. There is no evidence of any system for booking PMIs, making sure that they are checked properly before the vehicle goes back into service, that drivers are doing effective walk around checks etc. Mr Chalmers said in his evidence that he had done walkaround check training and tacho training with Mr White when he started as the driver. However, the Vehicle Examiner’s unchallenged original report confirms that the walkaround checks were not effective. The PMI sheets clearly were not being properly checked because there were basic and obvious flaws. If the Transport Manager had picked those up the vehicle should not have been in service. The same applies to the Operator.

We live in challenging times but we also live in modern times. Technology has proved to be a straight forward and effective tool to ensure that proper communication can take place whether people can meet in person or not. Even if someone doesn’t have a scanner they can take a photograph of a PMI sheet or a driver defect sheet and email it. The Operator’s and Transport Manager’s explanations and excuses are woeful.

8. Prohibition – 26 September 2020

Ms Ncube admitted that she knew about a defective tyre from the driver, and she had left it with Mr Moyo to arrange for the tyre to be changed because she was working. I am told that the vehicle should not have been on the road. The driver, Vladamir Cotorobai of Cotorobai Trans Ltd had agreed to help Mr Moyo by getting the tyre changed as the regular driver was unable to be present. Instead, I am told that Mr Cotorobai went on a frolic of his own using the tractor unit to cover for one of his own vehicles to meet a delivery deadline. Instead of being parked up safely in Northampton, the vehicle was stopped with the same defective tyre at Sandbach Services. Whatever the truth of the situation, it is another example of the Operator having inadequate systems to ensure that the vehicle is roadworthy at all times. My office will be referring this event to the Traffic Commissioner for the Eastern Traffic Area where Cotorobai Trans Ltd has its own Operator’s Licence and it is entitled to respond to this. If what I am told is true, then the prohibition should have been attached to that Operator Licence.

9. Prohibition – 16 November 2020

Vehicle PO13WLV was issued with a prohibition during the announced investigation on 16 November 2020. The vehicle was issued with two delayed prohibitions for a fuel tank cap missing and the trailer coupling device on the vehicle secondary locking device not fitted/located correctly to ensure security of the trailer. The Examiner also inspected the trailer present C000755 and issued it with an immediate prohibition in relation to a deep cut in the tyre. It was so serious that photographs were taken. Mr Chalmers said that it was his understanding that PO13WLV was “off the road” and “mothballed” awaiting sale. Ms Ncube did not give any explanation despite the requirement to do so in her response to the MIVR. When I questioned Ms Ncube, I pointed out that the Vehicle Examiner’s impression was that after the visit on the 16 November 2020, the vehicle was going back into service as there was a hired trailer and driver waiting for it. Ms Ncube said that she thought that the driver was simply going to take the trailer back to the hire company but that of itself needs an Operator Licence and roadworthiness. In any event she admits that the vehicle continued to be used and did so until it had a road traffic accident in Scotland at the end of November/early December.

There is no good reason for any vehicle or trailer to be presented to an Examiner in this way and the fact that it happened makes me worry as to the condition of the vehicles out on the road at any one time.

The prohibition history as set out on page 52 of the Public Inquiry bundle speaks for itself. Whoever was responsible for the actual prohibition, in terms of which Operators Licence, is only one part. The reality is that a tyre does not become worn beyond the legal limit overnight. The Vehicle Examiner confirmed that he saw all the driver defect sheets for the week before and there was no reference to that tyre. This undermines the Operator’s evidence that it was reported to her and that arrangements were in place for that tyre to be fixed. In my judgment it is equal if not more likely that the tractor unit was lent to Mr Moyo’s friend Mr Cotorobai with the defect undetected until the roadside encounter.

10. Remote Enforcement Office Traffic Examiner Desk Based Assessment

Ms Ncube’s explanation for the lack of data is that there was a vehicle unit issue whereby she was unable to do the download. There is no evidence of this other than her oral explanation that not only she but others tried to help her but failed. This does not explain why the driver data was not sent. When I challenged her on this, she started referring to documents but documents are not data and she did not seem to understand what I was talking about. This undermines the veracity of her evidence generally in relation to the availability of that data. It defies belief that driver licences are only checked when drivers start. Having attended a New Operator Seminar Ms Ncube is fully aware of the importance of driver data and vehicle data, the importance of being able to produce it for tacho analysis but also for the original data to be sent to DVSA. By failing to send the data to DVSA, the Operator has prevented my requirement for an independent assessment of the systems at that point for the benefit of the Public Inquiry. Failing to be in a position to produce data or documents, whether to DVSA or the Traffic Commissioner, is a gross breach of trust.

11. Mr Moyo

In April 2020 Ms Ncube wrote to my office and said that Mr Moyo had no role in her business. She explained that his name appeared on emails because the business email had been set up via his account originally and that she would make sure that his name was removed from everything. In her oral evidence she confirmed that Mr Moyo has no other employment and he is effectively engaged full time in helping her run the business. When the discrepancy was put to Ms Ncube she suggested that she had misread the original question from the licensing team and thought they were only referring to the email address. This response has no credibility. The question was clearly about his role in the business. The email from my office to the Operator dated 25 March 2020 includes:-

“Confirmation of the role in the business of Charles Moyo who’s name appears in the title of the emails sent. He is the director of a company which does not hold a licence”

Far from having no role in the business, Mr Moyo had effectively been managing the business at whatever level since transport operations began.

12. Conclusions

The letter from the Operator dated 25 June 2021 is effectively an apology and future promises. The Operator has failed to produce evidence as and when required and when evidence is produced it demonstrates systems which are far from robust. Indeed the systems fall far below what is required of the modern Operator Licensing regime to ensure safety. This is disappointing from an individual who clearly has a caring nature because she is a nurse. I simply do not understand her conflicting approaching to the wellbeing of individuals. This may be because in reality it is Mr Moyo’s business. I simply do not have sufficient credible evidence to make a decision one way or the other. However, I am entitled to know whom I am regulating and to be able to take action against those individuals. Where it is unclear it is the person who is named on the Licence that will take the force of the decision. However, those who sit behind the named Operator are not devoid of criticism or having directions given should they apply for a Licence in the future.

When I asked the question can I trust this Operator moving forward, the answer is no. There is no evidence before me (save for the late appointment of a Transport Consultant), that the Operator can be trusted. If I cannot trust Ms Ncube to put aside the appropriate time and energy to ensure this business is run properly then the engagement of the Transport Consultant is given limited weight.

When I ask myself the question is this an Operator that should be put out of business, I find that the answer must be ‘yes’. An Operator that continues to pose a significant risk to road safety and does not set aside the appropriate time to manage the licence also undermines fair competition. It is appropriate that I bring this unsatisfactory arrangement to an end.

Accordingly, I have reached the decision set out in paragraph 1 above. I have not disqualified Ms Ncube from applying again but she should think seriously before doing so. This is not a business to tinker with. If there is a future application she will have to demonstrate that she is fully committed to safe transport operations from an informed knowledge based. If Mr Moyo applies in the future, then his application to will need to be referred to a Traffic Commissioner and not dealt with under any delegated authority. This decision must be produced to the Traffic Commissioner/Deputy Traffic Commission in relation to any future applications by Ms Ncube or Mr Moyo.

Miss Sarah Bell

Traffic Commissioner

21 July 2021