The High Court in Pretoria on Friday confirmed that traffic authorities have to abide by the letter of the Administrative Adjudication of Road Traffic Offences (Aarto) Act and ordered that the fines before the court must be cancelled where the authorities did not comply.
The same failures apply to millions of traffic fines issued in Johannesburg and Pretoria since 2008. Some have been paid by vehicle owners to avoid a block on their vehicle and driver’s license renewals, while others are still pending and recorded against the alleged transgressor on the National Contravention Register (NCR), says Fines4U owner Cornelia van Niekerk.
In 2015/16 the Johannesburg metro police issued 5.3 million Aarto Infringement Notices and the Tshwane metro police 1.1 million. Van Niekerk contends that a large percentage of these fines would be affected by the same failures.
Van Niekerk has called upon the Road Traffic Infringement Agency (RTIA), which has been tasked by the legislature with administering Aarto, to cancel all similarly affected fines without delay.
If the agency fails to do so, she would again approach the court for an order to that effect, says Van Niekerk.
She has litigated against traffic authorities about their failure to apply Aarto correctly twice before and was successful both times.
Fines4U approached the High Court in Pretoria on behalf of its client Audi Johannesburg after it obtained upon enquiry, a list of 639 infringements notices the RTIA had issued against Audi Johannesburg. The value of the infringements was R322 000 and they spanned a period between 2008 and 2013.
Fines4U submitted representations in respect of a large number of alleged infringements on behalf of Audi Johannesburg. The representations were all on identical grounds, namely that the RTIA failed to comply with the Aarto Act with regard to among others the timelines for service of the notices.
This was not disputed by the RTIA. It in fact blamed the Post Office for its failure to deliver the notices within the given time limits. In an earlier Aarto implementation progress report upon which the court relied heavily, it was however stated that the RTIA is inadequately funded to roll out Aarto successfully.
When the court application was launched in September 2013, 155 of the representations were successful, 208 were unsuccessful, while 207 were still pending. The unsuccessful representations incurred a fee of R200, which would cost Audi Johannesburg R41 600.
The RTIA further failed to give reasons for its decisions, as the act requires. When Van Niekerk made an enquiry, RTIA officials told her: “we don’t send them (the reasons) anymore.”
Judge Bill Prinsloo rejected the RTIA’s argument that the outcomes of representations do not affect any rights and the matter could only be taken on review when an enforcement letter had been issued, which was not the case with regard to these matters.
He specifically found that the ruling by the representations officers constitute “administrative action”, which means they are reviewable under the Promotion of Administrative Justice Act (PAJA).
He accepted Fines4U’s argument that the RTIA’s “compliance with the prescribed periods of notification is obligatory and not a discretionary matter. It is an absolute requirement for the issuing of any enforcement order and fundamental to the due administrative process envisaged in terms of the Act”.
Prinsloo found that the representation officers acted irrationally by coming to contradictory conclusions in similar circumstances and offended the constitutional principle of legality. He found that the RTIA, “represented by the representation officers, acted beyond their statutorily conferred powers by not following the Aarto process, couched in peremptory terms, but nevertheless imposing fines and penalties after adjudicating upon the representations. By their own admission these were fruitless exercises, amounting to nothing more than ‘wasteful expenditure'”.
Prinsloo rejected the internal RTIA policy that limits representation to the merits of the infringement and stated that there is no provision in Aarto that arguments pointing to a failure to comply with prescribed procedures should be rejected.
Prinsloo set aside the decisions whereby Fines4U’s representations were made unsuccessful as well as the penalties levied accordingly and ordered the RTIA to pay Fines4U’s costs.
Moneyweb in April last year reported that millions of traffic fines issued in Johannesburg and Pretoria have become unenforceable due to the inability of the RTIA to pay its bill at the Post Office. The Agency strongly denied it and stated that it could deliver the notices by hand. It however failed to expand on the cost and practicality of such a course of action.
Friday’s ruling supports the view put forward by Moneyweb.
Tshwane mayor Solly Msimanga recently said Tshwane and Johannesburg are considering withdrawal from Aarto. They are the only two cities where the Act has been implemented, albeit on a trial basis, and it has been plagued with problems.
In the mean time a national Aarto task team is set to gather in Bloemfontein to discuss the readiness for a national rollout of the Act.
The court ruling is attached here: 7245 Uitspraak Fines 4 U
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