The government is facing a race against time to be in a position to start implementing the Administrative Adjudication of Road Traffic Offences (Aarto) Act in three days’ time.
The act might be used to enforce the payment of e-tolls, as outlined by Moneyweb earlier this month.
Advocate Stefanie Fick, head of the accountability division at the Organisation Undoing Tax Abuse (Outa), said on Monday there is “no chance” the Aarto Amendment Act can be implemented from July 1 because the president has not yet gazetted a notice confirming the date of implementation.
“If it goes ahead, it will fail. I don’t think they will be that stupid to roll it out without it being gazetted,” she said.
The Presidency has not yet responded to a query from Moneyweb about when, and if, the president intends to sign and gazette a notice about the implementation date of Aarto.
However, Fick stressed that even if the president did sign a notice making the implementation of Aarto effective from July 1, it could not be implemented without the establishment of the Appeals Tribunal.
The tribunal, a national body of nine part-time members, will adjudicate all appeals by motorists about infringement notices.
Both Outa and the Automobile Association of South Africa (AA) have questioned how the tribunal will be able to handle the workload arising from the millions of traffic fines issued countrywide after Aarto is implemented.
Fick said Outa will definitely apply for an interdict to stop the implementation of Aarto if the implementation date of the Aarto Amendment Act is gazetted and the Department of Transport implements the entire act or only implements the act in certain jurisdictions without an Appeals Tribunal.
“You can’t run the process without the Appeals Tribunal. We don’t think they [Department of Transport] have an Appeals Tribunal,” she said.
Fick added that positions for the Appeals Tribunal were advertised but the Department of Transport has not yet published the names of the short-listed candidates.
She said Outa has been in contact with the department about the establishment process of the Appeals Tribunal but has not received a response.
Fick added that Outa participated in a seminar where the department was talking about amending the act because of the need to have an appeals tribunal in every province instead of a single national tribunal but the act has not yet been amended to permit this.
“Aarto will not roll out in July. Impossible,” she said.
Things were ‘on track’ back in May
Minister of Transport Fikile Mbalula said during his budget vote speech in May that his department was on track with its target to proclaim July 1 2021 as the effective date for the nationwide rollout of Aarto.
“We have previously made a commitment to the rollout of the Aarto Act of 1998, bolstered by the Aarto Amendment Act, which was signed into law by the president on 13 August 2019.
“Over the medium term, we have allocated R545 million to the Road Traffic Infringement Agency [RTIA] to fund the rollout. R215 million has been allocated for the current financial year,” he said.
The implementation of Aarto is also facing some legal challenges.
Outa filed an application in the Pretoria High Court in September 2020 in terms of which it has applied for the Aarto Act and Aarto Amendment Act to be declared unconstitutional.
The application was issued against the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Agency (RTIA), which is responsible for implementing Aarto, and the RTIA’s Appeals Tribunal.
It is scheduled to be heard on October 18 and 19.
Outa said on Monday its attorneys wrote to the legal team for the two ministers and the RTIA on June 15, requesting them to refrain from implementing Aarto until the high court has ruled on this legal challenge.
Andri Jennings, Outa’s attorney in this matter, said in a letter to the State Attorney in Pretoria that it is premature for the national rollout to commence prior to the constitutional implications of Aarto being resolved.
“We note that no effective date has been officially gazetted. We further submit that the respondents are not ready to proceed with the national rollout of Aarto and should they persist, it may lead to the system’s collapse.
“We therefore advise caution so that the respondents do not incur wasteful expenditure of public money,” she said.
Outa said it has not yet received any response from the State Attorney.
City of Cape Town
The City of Cape Town is also considering a legal challenge to the implementation of Aarto.
Alderman JP Smith, Mayoral Committee Member for Safety and Security at the City of Cape Town, told Moneyweb last month the City is “considering its options to challenge the implementation of Aarto specifically with regard to its functionality because we believe it to be ineffective in reducing road fatalities”.
Smith said the other objection would be related to the powers of law enforcement officers “where Aarto legislation appears to conflict with the local government mandate as far as it relates to traffic and parking”.
The AA is also opposed to the implementation of Aarto.
AA spokesperson Layton Beard said earlier this month the association does not believe the system is ready to be implemented.
Beard said the AA remains concerned about the Appeals Tribunal because no case has been advanced which would assure that it would be impartial and uphold a consistent standard of adjudication.
He said a number of other provisions in the Aarto Act are of concern, including that motorists will have to pay a R100 levy in addition to the fine to get an infringement notice, which “is unconscionable”.