Proudly sponsored by

Department of Transport in race against time to fully implement Aarto

It also faces a constitutionality challenge.
Outa says the legislation usurps the authority of local government by moving the enforcement of all road and traffic laws to national level. Image: Mbuyiselo Ndlovu

The Department of Transport is facing a race against time to be able to fully implement the Administrative Adjudication of Road Traffic Offences (Aarto) Act, including the driving licence points demerit system, even if the legislation is not declared unconstitutional.

A challenge to the constitutionality of the Aarto Act and the Aarto Amendment Act was heard in the Gauteng North High Court this week, with Judge Annali Basson reserving judgment.

This follows the Organisation Undoing Tax Abuse (Outa) applying in July 2020 to the court for both acts to be declared unconstitutional.

Read: SA’s new traffic demerit system to impose ‘stricter rules’ on motorists

Outa cited Minister of Transport Fikile Mbalula, Minister of Cooperative Governance and Traditional Affairs (Cogta) Nkosazana Dlamini-Zuma, the Road Traffic Infringement Authority (RTIA) and the RTIA Appeals Tribunal as respondents to the case.

The transport minister and the RTIA are opposing the application while the Cogta minister did not oppose it and will abide by the court’s decision.

Outa executive director Advocate Stefanie Fick on Thursday expressed confidence in a successful outcome to the case.

Aarto could be ‘off the table’

Fick said that if these acts are declared unconstitutional “Aarto is off the table” and the Department of Transport will have to go back to the drawing board.

She said the judgment will still have to go to the Constitutional Court for its stamp of approval, but Mbalula or the Department of Transport will probably appeal against any judgment declaring Aarto unconstitutional.

Mbalula announced on July 1 that Aarto will be implemented in phases with immediate effect, but the points demerit system and driver rehabilitation programmes of Aarto will only be introduced from July 1 next year.

Read:

Fick is hopeful that President Cyril Ramaphosa will not gazette the commencement date of Aarto if the court processes and any appeals related to the alleged unconstitutionality of Aarto have not been finalised by July 1, 2022.

“Although the president has signed the Aarto Act, the commencement date must still be published in the government gazette and that hasn’t happened yet,” she said.

Appeals Tribunal not in place

Fick added that it will also not be possible to implement Aarto unless the Appeals Tribunal has been appointed.

“They must still publish the nominations so that there can be public participation. That hasn’t happened. You can’t start this process without having a very vital part of Aarto in place,” she said.

In terms of the four-phase approach to the national Aarto rollout plan announced by Mbalula in July, the Appeals Tribunal is scheduled to come into full operation in the second phase, which commenced on October 1 and ends on December 31 this year.

With the disruption of the December holiday period, this means the Department of Transport now only has about 40 working days to meet the December 31 deadline to have the Appeals Tribunal fully operational.

Unconstitutionality

Advocate Matthew Chaskalson SC, appearing for Outa, listed a number of reasons why the two acts should be declared unconstitutional in court this week.

These include that the acts usurp the exclusive legislative authority of the:

  • Provincial legislatures because these acts regulate road traffic and create a single, national system to do so when provincial and municipal road and traffic regulation falls within the exclusive legislative competence of the provinces under Schedule 5, Parts A and B of the Constitution.

  •  Local government (under Part B of Schedule 5 of the Constitution) to enforce traffic and parking laws at the municipal level by moving the enforcement of all road and traffic laws to the national level.

Chaskalson added that these acts create a system whereby traffic laws are, by default, enforced through a national system of administrative tribunals, administrative fines and demerit points, with all road traffic “infringements” handled by the RTIA and the Appeals Tribunal, two national organs of state that are created by Section 3 and 29A of the Amendment Act.

“The above aspects of the Aarto Act and Amendment Act are inconsistent with the Constitution. These aspects go to the core of the acts and are not capable of severance. As such, the acts fall to be declared unconstitutional. This is the primary relief sought by the applicant [Outa].

“The national government did not have the power to pass national legislation regulating all road traffic,” said Chaskalson.

“By so doing it unconstitutionally invaded the exclusive legislative competence of the provinces and the exclusive executive competence of the municipalities.

“The participation or approval of the provinces cannot not cure this fundamental defect,” he said.

Chaskalson said in the event that the court declines to declare the acts unconstitutional, Outa seeks alternative relief and an order declaring that the service provisions of the Amendment Act are manifestly inadequate and are unconstitutional.

He said Section 17 removes the requirement that service under the Aarto Act “must” be personal or by registered mail.

Chaskalson said it allows service by email, SMS or voice mail but, given the serious consequences that may flow from an infringement, such service is inadequate.

“Proper service, at all stages of the adjudication process, is critical to ensuring that an infringer’s constitutional rights are protected.

Read: Payment problems surface with Aarto fines payment system

“An infringer who has not received notice of their infringement, and who would have contested it or even paid the penalty, may end up barred from obtaining a driver’s licence or banned from driving until they have overturned the enforcement order,” he said.

‘Harmony and standardisation’

Advocate Makhosi Gwala, appearing for the Minister of Transport, said the Aarto Act brings harmony and standardisation of the adjudication of road and traffic infringements nationally, regardless of where they occur in South Africa.

Gwala said this gives meaning to Section 1 of the Constitution, which provides that South Africa is one sovereign, democratic state.

He added that due to high incidents of crime in the country, the courts give priority to serious crime as opposed to traffic violations, with the result that less than 20% of the traffic cases are finalised by the courts.

“This scenario has significantly contributed to bad behavioural conduct by drivers on the road,” he said.

Gwala said Outa’s submissions in regard to the service of infringement notices are baseless, adding that service by registered mail is not excluded.

“The amendment act simply extends the scope of the method of service. It incorporates the use of other services currently offered by or that may become available in future in the post office,” he said.

The Minister of Transport also argued that if the court does rule that Aarto is unconstitutional, it should suspend the declaration of invalidity for 24 months to allow parliament to rectify this.

Outa opposed this, arguing that Aarto has not yet been rolled out nationally and the acts should be set aside with immediate effect so the state does not incur significant rollout costs, which end up as wasted costs.

Advocate William Mokhare SC, appearing for the RTIA, said the constitutional attack of the principal act on the basis of separation of powers and autonomy of local government is misplaced because it arises from a misinterpretation of the Constitution.

Mokhare emphasised that the legislation is aimed at ensuring uniform standards of road and traffic regulation and harmonisation among all spheres of government.

“We submit that the standardisation and harmonisation of road and traffic regulation will add to a better and certain regulatory environment throughout the country,” he said.

AUTHOR PROFILE

VIDEOS

COMMENTS   32

Sort by:
  • Oldest first
  • Newest first
  • Top voted

You must be signed in and an Insider Gold subscriber to comment.

SUBSCRIBE NOW SIGN IN

Every thing the government needed to implement in the past was a race against time. And time always won.

Government cannot even uphold the laws they implement

They love creating new ones as an excuse to gather to enjoy a round of KFC, courtesy of the 5%

Once they start dishing out Orange overalls to their comrades for corruption, i’ll start believing in their fairy tales

A good start would be the disgruntled,useless corrupt suspended SG

In SA, you can’t lose your license for bad driving. There are many taxi drivers and drag racers, who should be permanently barred from our roads.

AARTO will deal with the bad drivers harshly. If you’re a responsible and safe driver, who follows the rules of the road, you have nothing to be worried about.

There are also many Ministers, their extended families and their hanger on’s that abuse the Blue light system that should also be banned. So start at the top and then work downwards to the taxi drivers.

If you happen to be a safe driver but break a speed limit once. Pay the fine to get a fine. Keep thinking you have nothing to worry about. Dumb but good for your ulcer.

Take your dark glasses off.

Let me fix it for you in order to be read within your frame of reference:

“This scenario has significantly contributed to bad behavioural conduct by THE GOVERNMENT AND THEIR CADRES RULING THIS GODFORSAKEN HELLHOLE COUNTRY”

EFF Commissar makes a valid point here..

A Sunday road trip back and 5 performance motorbikes over took at speed on a barrier line (no overtaking permitted)in on coming traffic

A little while we saw the results. 3 bodies covered with silver sheets, one motorcyclist in a neck brace and the 5th standing around at a distance with the police

Occupants of the car which collided, not sure but the vehicle was upturned on the verge, damaged beyond repair

And all this for bravado

LOL – and Aarto would solve this – no more accidents ne !!!

Yes EFF Commissar makes a valid point. I think this is the first time I have seen any comment from him that actually makes sense. The main risk I foresee is that traffic cops will start to stop motorists at random and demand bribes for not issuing invalid tickets.

Not with your gawwamint, my boy

The fundamental problem AARTO was meant to solve was the notification and summons process under the Criminal Procedure Act, which was routinely abused and flouted by local authorities who knew it was cheaper and easier for motorists to pay a fine than contest defective service in court. Those abuses persist to this day outside the AARTO pilot project areas.

The simple solution was for all fines to be served either in person or by registered post, the same standard of service required for initiating documents in other judicial matters. It could have been fixed simply and cheaply two decades ago and a points-demerit system could easily have been bolted on.

Instead, the DoT rejigged the concept to monetise traffic enforcement with no regard to actual road safety, and create parallel structures to the criminal justice system into which comrades could be parachuted with multi-million Rand salaries.

The idea itself does not contain defects which could be cured by Parliament if OUTA wins; it is a massive slithering, mumbling defect in totality.

We should return to the original plan. The problem is that the original plan involved reducing road deaths. The last half a decade of traffic law amendments and drafts provides no evidence that the DoT has the will, technical skill, or competence to do so.

Great comment. Thank you.

Simple. Get Fikile to set a date.
The same as he has done around the decision around Toll Roads on multiple occasions.

If Fikile sets a date we are safe because it will never happen alla the etoll fiasco.

With Fix Fokol at the helm, what could possibly go wrong???????

I agree..Frikkie Mbalula should be given the title “without portfolio”

That way he can stop embarrassing himself and the school he attended, if indeed he ever went to school

Hey !!! That is the honourable minister Fix Fokol you guys are on about — How about some disrespect !!!!

The Department of Transport cannot regulate the taxi industry and keeps making excuses as to why the taxi industry kills more people than any other industry in South Africa – BY FAR.

Therefore, with the politicization of the DoT, and their inability to regulate the taxi industry, which is run by the ANC mafia, I do not trust their motives with anything, let alone this proposed Aarto legislation.

They will exempt the taxi drivers from the demerit system.

Essential service…..

@ Africa Pragmatist: Agreed. It’s all about the money they will be able to fleece from the generally law-abiding, taxpaying citizen. Low hanging fruit, as is their continual objective. They are terrified of dealing with real criminals, including the taxi mafia and their own comrade cadres. Setting a thief to catch a thief not quite applicable here.

The law in SA only applies to the people who are law abiding. For everyone elss its totally optional.

That poor minister…so in over his head.
rather enforce the law with serious issues not some granny doing 87km in an 80km zone. Its just too much for these under-developed brains to focus on priorities such as serious crime, broke SOEs, failed health care, security, education and housing

A government of mediocrity elected by mediocrity ruling over mediocrity in a country of mediocrity

Their only goal is to suck up as much money as possible from the middle classes. They do not care about making things work

If Aarto will do the job, I don’t know, but something needs to be done against the terrible driving behaviour on our roads. I think old fashioned, diligent and honest Spietkops will do the job better than any hidden speed cameras and aarto software ever will.

Nowadays we need skietkops !!!

Not sure if I agree with your comment Japie; Spietkops have been hiding behind bushes since I was a kid.

If the DOT simply focused on making the minibus taxi industry obey the rules of the road, a considerable number of traffic issues would be addressed and their credibility would skyrocket. But they have kicked this can down the road for how many years now? Battered and decrepit taxis are everywhere to be seen, the drivers violate rules of the road constantly with impunity and they spread their contempt for the law everywhere they go. The prevailing attitude now seems to be, ‘if taxis do it, then when can’t I?’ How can we take anything this department does seriously until this industry is brought into line?

Dear cadres, Comrades & Commissars – Just leave is in the WC alone and we’ll be fine thanks central CadreMent

I foresee some cops becoming very rich with all the bribes. R200-00 or lose your licence. No-brainer

In present format AARTO is impractical, unworkable and infringes on various rights – essentially a money-making scheme that will soon run out of legal drivers to keep it afloat

If they focused on enforcing the laws and not just focus on speed. Hiding behind a bush with a camera to catch motorists on a downhill after the speed is lowered on a road where it is questionable whether the speed limit is posted is not going to lower the accident rate or death rate on the roads. From observation, the problem seems to be drunken driving and a significant number of accidents are cars hitting pedestrians.
It does not matter what speed you are travelling, if a drunken pedestrian stumbles into the road right in front of you it is going to be difficult to avoid hitting him with the car. I was on the N1 in Johannesburg once at night when I narrowly avoided a drunken pedestrian who stumbled into the road.

I want to see this being implemented against the taxi industry. I can see that we are going to have many unlicensed drivers on our roads. That’s the problem when you import legislation from a first world country where laws are obeyed into a lawless third world country.

Thank goodness for the OUTA and the other NGO’s who fight for the citizens against a predatory government.

In a perfect world, AARTO might have a slight chance to survive. It is not even working properly in 1st world countries.
If implemented in SA, I would like to see how many Taxis remain on the road after 18months.

Other concerns are all the ‘cloned’ cars and duplicated numberplates. Now you will be guilty until proven innocent!!

The foundation of the argument to support AARTO is laid on quick-sand.

End of comments.

LATEST CURRENCIES  

USD / ZAR
GBP / ZAR
EUR / ZAR
BTC / USD

Podcasts

INSIDER SUBSCRIPTION APP VIDEOS RADIO / LISTEN LIVE SHOP OFFERS WEBINARS NEWSLETTERS TRENDING

Follow us:

Search Articles:
Click a Company: