AARTO: One unconstitutional law, three legal actions in the Concourt
In February 2022, the controversial AARTO law headed to the Constitutional Court in three legal actions and confusion over whether government is defending its law.
The matters have been filed in the Concourt and directions from the court are awaited.
How we got to the Concourt
On 13 January 2022, the Pretoria High Court declared the Administrative Adjudication of Road Traffic Offences (AARTO) Act and the AARTO Amendment Act unconstitutional and invalid. This was a result of OUTA’s legal case challenging both AARTO Acts, which was filed in July 2020. The court found that AARTO unconstitutionally intruded on the executive and legislative powers of provincial and local governments.
The high court case was brought by OUTA against four respondents: the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Authority (RTIA, a state-owned entity which reports to the Minister of Transport and is responsible for implementing AARTO) and the RTIA Appeals Tribunal. Only the Minister of Transport and the RTIA opposed OUTA’s application in the high court.
The high court judgment of unconstitutionality must be confirmed by the Concourt, the standard procedure when a law is declared unconstitutional.
However, there are now three actions filed in the Concourt in connection with this.
Concourt application 1: OUTA’s application for confirmation (CCT 19/2022)
On 3 February, OUTA applied to the Concourt for confirmation of the Pretoria High Court ruling. OUTA’s application is in terms of Rule 16(4) of the Constitutional Court Rules, which deals with confirmation of an order of constitutional invalidity.
Rule 16(4) states that those seeking to confirm an order of unconstitutionality shall, within 15 days of the order, lodge an application for confirmation with the Concourt; the matter shall be disposed of in accordance with directions given by the Chief Justice. These directions are still awaited.
The four respondents had 15 days to file a notice of intention to oppose OUTA’s application.
Only on 24 February, the Minister of Transport filed notice of intention to oppose. The Minister then had 15 days to file an answering affidavit, but by 12 April the Minister had still not filed that affidavit.
It is thus unclear whether the Minister is in fact opposing OUTA’s application.
No other respondents have filed an intention to oppose.
Concourt application 2: The notice to appeal
On 7 February, the Minister of Transport and the RTIA separately filed their notices of appeal at the Concourt, setting out their reasons for appealing the high court ruling. This is separate to OUTA’s confirmation application and follows a different process in the Concourt.
The same day, OUTA filed a notice of intention to oppose the appeal.
The Minister’s application is also brought in terms of Rule 16, but a different section. Rule 16(2) states that those who want to appeal against an order of constitutional invalidity should lodge a notice of appeal – and the grounds for the appeal – with the Concourt within 15 days of the court’s order of invalidity; the matter shall be disposed of in accordance with directions given by the Chief Justice. These directions are still awaited.
Concourt application 3: RTMC intervention
On 8 March, the Road Traffic Management Corporation (RTMC), a state-owned entity that reports to the Minister of Transport, applied to the Concourt for permission to intervene and be joined as the fifth respondent in the case. The RTMC wants to join the appeal against the high court judgment; failing that, the RTMC wants to oppose OUTA’s application for confirmation of constitutional invalidity.
The RTMC was not party to the high court case, and this is the first indication it is interested in the matter.
On 15 March, OUTA filed notice of intention to oppose the RTMC’s intervention application and, on 7 April, filed an answering affidavit in support of this.
Here are the positions so far
Concourt 1: OUTA’s application for confirmation
The high court accepted the core submissions by OUTA. The judgment found that both AARTO acts were unconstitutional and invalid because by setting up a national system to enforce traffic and parking laws, AARTO usurps the exclusive executive authority of local government over local roads and the authority of provincial government over provincial roads.
OUTA says that if the Concourt declines to confirm the declaration of invalidity, then it asks for an order declaring that the service provisions of the AARTO Amendment Act are manifestly inadequate and unconstitutional, as it removes the requirement for service of documents in person or by registered mail, providing instead for service by e-mail, SMS or voice mail.
In the confirmation application, OUTA asked for the matter to be decided as soon as possible, as government intends rolling out AARTO.
The confirmation application papers:
• OUTA’s application to the Concourt to confirm the high court ruling on 3 February 2022 is here.
• Rule 16 of the Concourt Rules is here.
• The Minister of Transport’s notice to oppose of 24 February 2022 is here.
Concourt 2: The notice to appeal
The notices by the Minister and the RTIA say that the high court erred in granting the declaration of constitutional invalidity.
The Minister’s notice says:
• Previously all traffic contraventions were administered in terms of the Criminal Procedure Act and AARTO was created to improve efficiency;
• AARTO establishes a procedure for the adjudication of infringements, without taking over enforcement powers of provinces and municipalities;
• Road traffic regulation is a concurrent national and provincial legislative competence;
• The AARTO process is administrative and is preceded by officers of relevant authorities issuing infringement notices;
• AARTO does not end the criminal process under the Criminal Procedure Act as this may be used as a last resort;
The high court failed to identify the provisions in AARTO which should not have been included, so did not make an order severing the constitutionally valid provisions from the invalid provisions, instead declaring the entire AARTO Act and AARTO Amendment Act invalid.
The RTIA notice says:
• The court erred in finding that the question for determination is whether national government has the competence to legislate on matters relating to provincial and municipal roads;
• The court erred in finding that AARTO creates a single national system of road traffic regulation and seeks to regulate every aspect of road traffic;
• The court erred in finding that the power to enforce traffic laws on municipal roads has historically been conferred on municipalities;
• The court erred in finding that national government competencies excluded those carved out by a “bottom up” approach, which removed matters dealing with provincial roads or municipal roads, traffic and parking.
The notice of appeal papers:
• The Minister of Transport’s notice of appeal of 7 February 2022 is here.
• The RTIA notice of appeal of 7 February 2022 is here.
• OUTA’s notice of intention to oppose this of 7 February 2022 is here.
Concourt 3: RTMC intervention
The RTMC wants OUTA’s application for constitutional invalidity to be dismissed but, if OUTA succeeds, then the RTMC wants the declaration of invalidity to be suspended for 18 months to allow the law to be remedied.
The RTMC makes arguments which were not placed before the high court, saying this is not new evidence but rather context on the legislative scheme and the history of road traffic regulation.
The RTMC argument includes that:
• AARTO is at the core of RTMC’s statutory mandate, it is an issuing authority under AARTO and was established as a partnership between national, provincial and local government on traffic issues;
• The RTMC should have been cited as a respondent in the high court case;
• AARTO is not concerned with matters related to provincial roads and traffic or municipal roads and parking;
• The substance and goals of AARTO are primarily concerned with road traffic regulation and thus fall within the purview of national legislation;
• The history, context, purpose, substance and goals of AARTO make it constitutionally valid;
• The high court answered the wrong constitutional question in its judgment.
OUTA's answering affidavit, by Advocate Stefanie Fick, includes this:
• The RTMC fails to explain why it did not intervene in the high court case, which was launched in the high court in July 2020 and heard in October 2021. “Between the institution of the matter and the hearing, the litigation received extensive publicity in national and regional newspapers, on radio and in news broadcasts on television”. The media also reported on the court hearing in October 2021.
• The RTMC is a state-owned enterprise whose shareholders are the Minister of Transport (the first respondent in the matter) and the provincial MECs for Transport, who serve on a shareholders committee that meets four times a year and is involved in the governance of RTMC.
“In light of the close relationship between the Minister, the shareholders committee and the RTMC, and the widespread media coverage of OUTA’s constitutional challenge to AARTO and the Amendment Act, it is inconceivable that the RTMC was not aware of the litigation when it was first instituted or that it did not become aware of it before 18 October 2021, the date of the hearing in the high court,” says Advocate Fick in her affidavit.
The intervention papers:
• OUTA’s notice of intention to oppose of 15 March 2022 is here.
• OUTA’s answering affidavit by Advocate Stefanie Fick of 7 April 2022 is here.
Background on OUTA’s long-standing opposition to AARTO as an ineffective response to road traffic infringements is here.