Decision for J.Max Transport Ltd (OD2034177), Transport Manager, Mr Maxwell Nyamukapa & Driver Conduct Hearing for Mr Maxwell Nyamukapa
The Traffic Commissioner for the West Midlands' written confirmation of the oral decisions for J.Max Transport Ltd (OD2034177), Transport Manager, Mr Maxwell Nyamukapa & Driver Conduct Hearing for Mr Maxwell Nyamukapa
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Details
The Traffic Commissioner for the West Midlands decided:
Good repute, operator
- The operator had lost its good repute and the operator’s licence had to be revoked under section 27(1)(a) of the Act.
Good repute transport manager
- The loss of good repute for Mr Nyamukapa as a transport manager was made with immediate effect. That order was made under paragraph 16(2) in Schedule 3 of the Act.
Disqualification, transport manager
- There is only one outcome when a transport manager loses their good repute, they must be disqualified. In this case, repeating all of the facts and despite the credit I had given to Mr Nyamukapa, it was proportionate to disqualify him as a transport manager for 5 years to mark the severity of his conduct, the risk he posed to road safety, the unfair commercial advantage he gained, the total loss of trust between him and myself as the Traffic Commissioner and to send out the right message to compliant transport managers and the public alike that this type of conduct can never be dealt with by anything other than the most serious and robust type of regulatory action. This case is also so serious on its facts that it is to act as a deterrent to other transport managers who may be tempted to embark on similar conduct to Mr Nyamukapa. The disqualification imposed was with immediate effect and will not end until 2359 hours on 03 January 2029.
Professional competence, operator
- The operator was no longer professionally competent because it no longer had a transport manager. The licence therefore had to be revoked due to the lack of professional competence in accordance with section 27(1)(a) of the Act.
Discretionary powers
- Under my discretionary powers, repeating all of the facts as I have found them to be proven, it was also proportionate to revoke the operator’s licence pursuant to sections 26(1)(b), (c)(ii), (e), (f) and (h) of the Act despite the credit I had given to the operator for the positives in this case:
(a) 26(1)(b) – the clear breaches to the conditions on the licence as the operator had failed to notify me of events that may effect its ability to remain of good repute and professionally competent; I should have been notified by the operator immediately after Mr Nyamukapa had undertaken his interview under caution with the DVSA because he had, at that point in time, formally admitted all of the allegations made to him that he had knowingly made a false record; and
(b) 26(1)(c)(ii) – the 35 convictions recorded against Mr Nyamukapa and in particular the 20 convictions for knowingly making a false record; and
(c) 26(1)(e) – the breaches to the statements of expectation made by Mr Nyamukapa when the operator’s licence was granted; and
(d) 26(1)(f) – the breaches to the general undertakings on the operator’s licence that related to compliance with drivers hours and tachograph rules and regulations; and
(e) 26(1)(h) – the material changes that had occurred since the operator’s licence was granted
Orders of revocation and why they started with immediate effect.
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All orders of revocation were with immediate effect given the fundamental lack of trust I had with Mr Nyamukapa, the severity of the case, the up to date evidence of non-compliance that put road safety at risk and because there was no persuasive reason not to commence all of my orders of revocation with immediate effect.
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In that respect it cannot be said that Mr Nyamukapa did not anticipate losing the operator’s licence held by J.Max Transport Ltd, or his good repute as a transport manager, well before the hearing. It is more likely than not that he would have been so advised. He had had since the time of the admissions made in the interview under caution with the DVSA to have started to make contingency plans for the loss of this operator’s licence and certainly he would (should) have been thinking about that when he was summoned to the Magistrates Courts and he definitely should have been thinking about contingency plans after he pleaded guilty to all offences on 16 October 2023 and thereafter when his lawyer wrote to me with notification of the convictions on 25 October 2023 (page C18 of the bundle). In addition, the call up letter dated 24 November (sent by email and post) said (bottom of page A10 in the bundle):
“You should consider making contingency arrangements for any outcome from the inquiry, WHICH MAY INCLUDE THE LOSS OF YOUR LICENCE.”