If AARTO goes ahead in July it will fail

Although the Minister has said AARTO starts in July, the law can’t take effect until the official start date is gazetted, which has not yet been done.

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28/06/2021 11:51:05

If AARTO goes ahead in July it will fail 

If AARTO starts in July, OUTA expects it will fail.

The rollout has not been properly planned, OUTA’s legal challenge to AARTO is due in court in October, and the agency charged with implementation has refused to provide any information on readiness.

There’s no start date

The legislation which sets up the driver’s licence demerit system has not yet had an official start date gazetted. This means if it is expected to start on 1 July 2021 as Minister of Transport Fikile Mbalula has previously claimed, it will be a last-minute authorisation.

Last-minute is not the way to start such a complicated and bureaucratic process, particularly as this relies heavily on failed systems like municipalities.

The demerit system was set up in the Administrative Adjudication of Road Traffic Offences Act (AARTO) but that section of the Act was never rolled out. The AARTO Amendment Act will implement the demerit system and was signed into law in August 2019 but, although this was nearly two years ago, no start date has ever been gazetted.

OUTA’s challenge to AARTO is due in court in October

OUTA has asked the ministers responsible for implementing AARTO to hold off on the rollout, due to the lack of readiness by authorities and because OUTA’s legal case challenging AARTO’s constitutionality is due in court in October 2021.

In July 2020, OUTA filed a court application calling for the AARTO Act and the AARTO Amendment Act to be declared unconstitutional. The application was issued in the Pretoria High Court and is against the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Agency (RTIA) and the RTIA's Appeals Tribunal. The RTIA is responsible for implementing AARTO.

The matter is due to be heard on 18 and 19 October 2021.

On 15 June, OUTA’s lawyers wrote to the legal team for the two ministers and the RTIA, asking them to refrain from implementing AATO until the high court has ruled on this legal challenge. “It is premature for the national rollout to commence prior to the constitutional implications of AARTO being resolved,” said Andri Jennings, OUTA’s attorney in this matter, in a letter to the State Attorney in Pretoria.

“We note that no effective date has been officially gazetted,” said Jennings. “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 moneys.”

No response has been received.

While OUTA believes that measures to improve road safety and reduce fatalities are urgently needed, we believe that the AARTO Amendment Act will not achieve this. AARTO was rolled out in Gauteng 10 years ago and failed spectacularly. Statistics do not support the claim that it will lead to a reduction in fatalities on roads.

OUTA’s application calls for the court to declare both the main act and the amendment unconstitutional. This is because this legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution. If the court finds that the law is not inconsistent with the Constitution, then OUTA further opposes Section 17 of the Amendment Act. This removes the requirement that service of notices and related documents must be done personally or by registered mail, instead allowing the uses of email, SMS or voice message.

If the authorities are ready, they’re keeping it secret

On 13 August 2020, OUTA filed a request for information to the RTIA in terms of the Promotion of Access to Information Act (PAIA), asking for information relating to the readiness of authorities to implement the national AARTO rollout. This includes the guidelines used to determine the criteria for readiness assessments of issuing authorities (which includes municipalities), and details of the payment platforms.

The list information requested is here. None of it was provided.

On 16 March 2021, OUTA filed an application in the Pretoria High Court, asking the court to order the RTIA to provide the information requested in the PAIA application. The application is here. 

The RTIA filed a notice of intention to oppose the application, but this was so late it missed the court deadline of 12 April. The RTIA also failed to file an answering affidavit by the court deadline of 4 June.

The matter is thus regarded as unopposed and is due to be heard on 2 July 2021.

More information

More on OUTA’s opposition to the AARTO issue is here and to the AARTO regulations is here.

More on the PAIA case is here.

A soundclip with comment from Advocate Stefanie Fick is here.

Picture: OUTA