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New AARTO Amendment Act: road safety is not prioritised
The current Administrative Adjudication of Road Traffic Offences (AARTO) pilot project has been partially in use in the Johannesburg and Tshwane metros for the past 10 years. Yet, society is still waiting for the promised positive results. Instead of ensuring a drop in road accidents and fatalities or more compliance to the law, we have seen a worrying increase in lawlessness as well as mortality rates due to road accidents.
After studying the new proposed regulations to the AARTO Amendment Act, it is abundantly clear that this Act will change very little when it comes to road safety. It is OUTA’s informed view that the intention of the legislation and the regulations is to make money and not to protect road users. If increased road safety was the goal, why is the proposed administrative process and system aimed at generating money through a system that is complicated, cumbersome and definitely not user friendly? This administrative system will force citizens to rather pay the fines instead of following due process (whether guilty or not). Or worse, it will open the door for even more corruption in the form of bribes.
We want to emphasise that OUTA remains concerned about our country’s high number of road fatalities. We believe that these fatalities are largely due to the poor enforcement of traffic laws, a lack of traffic infringement management and a variety of problems in the management of vehicle- and driver licensing.
OUTA recommends that the Minister of Transport go back to the drawing board regarding the regulations, as the current version will not withstand legal scrutiny. The administrative burden will also make enforcement virtually impossible, making the Act’s purpose of road safety unattainable.
Below is a summary of problems OUTA’s legal team identified:
Electronic delivery of AARTO notices presents an unacceptable risk for motorists (who may overlook them) due to the serious consequences that might follow non-adherence.
There is too much uncertainty over the appeal process regarding the application for refunds of penalties and fees.
Legalities surrounding the suspension of driver’s licences: the regulations stipulates that drivers whose drivers’ licenses will be suspended due to the accumulation of the maximum demerit points, may be informed by registered post or electronic means, but the Act says only registered post may be used. This makes the regulation void, as it cannot amend legislation.
Prescriptions around rehabilitation programmes to get drivers’ licences back, are too vague and ambiguous.
The appeals process (to appeal or review decisions made by representation officers) will be heard by a single Appeals Tribunal, run by a chairperson and eight part-time members. OUTA believes this is unrealistic and will result in huge administrative backlogs, forcing ordinary citizens to rather pay a fine (whether guilty or not) to avoid the administrative hassle of the prescribed appeals process.
Constitutional uncertainty: The enforcement of traffic and parking laws must take place at a local and provincial level and cannot be usurped by national organs of state by creating the Appeals Tribunal through the AARTO Amendment Act and the regulations. We believe that the AARTO Act and the Amendment Act intrudes upon section 156(1)(a) of the Constitution. Furthermore, the AARTO Act does not include the SAPS among those authorised to issue AARTO fines (issuing authorities), but they are included in the regulations. The regulations thus appear to be amending the Act, which it cannot do, and it also unconstitutionally interferes with the powers of the National Police Commissioner over the role of the SAPS.
Exorbitant infringement penalty levy: OUTA believes the suggested R100 infringement penalty levy payable on all AARTO notices is exorbitant, especially in the light of the fact that the Amendment Act proposes that AARTO notices may be sent via electronic communication. The implementation of the infringement penalty levy does not promote road safety but is aimed at revenue generation, seeing that the cost of administration (which according to the RTIA is the purpose of the infringement penalty levy) was always included in the fine amounts. OUTA strongly believes that the infringement penalty levy should be removed from the AARTO Amendment Act and its regulations.
Trying to enforce e-toll compliance after the scheme failed: Schedule 3 of the regulations stipulate that people who do not pay e-toll will be issued with an AARTO fine for not adhering to a road traffic sign (e-toll road sign). OUTA does not believe that the AARTO Amendment Act and the regulations will be able to practically enforce e-tolls. It would require processing traffic fines and reminders for every unpaid gantry e-toll bill. Bear in mind that SANRAL processes over 2 million e-toll transactions per month, which - if not paid - will result in over 2 million Infringement Notices being issued in Gauteng alone. AARTO, which is reliant on the Electronic National Administration Traffic Information System (eNaTIS) system, will not be able to handle these large amounts of transactions, and will therefore make enforcing this impossible. OUTA strongly believes that legislation is only effective if it can be enforced – this is unenforceable and irrational.
Poorly drafted regulations: OUTA listed 16 errors in cross-referencing the regulations, and it is abundantly clear that the regulations were drafted in haste and without due regard to the legal soundness or the interpretation of the Minister’s express intent.
*OUTA will continue to fight against this unconstitutional act. Please show your support by endorsing our submission.