Minister Mbalula clings to unconstitutional and irrational AARTO
OUTA takes note of Transport Minister Fikile Mbalula’s intention to challenge the Pretoria High Court ruling in OUTA’s favour, regarding the unconstitutionality of the Administrative Adjudication of Road Traffic Offences Act (AARTO) and the AARTO Amendment Act.
“This does not come as a shock to OUTA, especially if one looks at the department’s past conduct and their misplaced belief in this irrational administrative system,” says Andrea van Heerden, OUTA’s Senior Legal Project Manager.
“Minister Mbalula would be better advised to consult widely with civil society and major road safety stakeholders to gain input on meaningful initiatives to improve law enforcement and develop a national culture of road safety which is constitutionally sound in law and effective.”
As the high court has declared AARTO unconstitutional, OUTA will now bring an application to the Constitutional Court for the high court finding to be confirmed. The confirmation application is brought in terms of section 172(2)(d) of the Constitution.
OUTA has 15 days from the high court judgment to file this application, giving a deadline of 3 February 2022, and intends to file by then, following which the Minister will be able to address his objections to the outcome.
“It is our belief that should Minister Mbalula wish to challenge this judgment, he will have to oppose OUTA’s confirmation application in the Concourt,” says Van Heerden.
“Typically, cases that reach the Concourt start in the high court, which has the power to grant various remedies and can declare legislation invalid. Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Concourt before it has any effect. The Concourt has the discretion on whether to hear a matter; an exception to which is where an Act has already been declared invalid and the Concourt is required to confirm the finding. This is in terms of Rule 16 of the Constitutional Court Rules.”
Until the Concourt confirms the Acts to be unconstitutional and invalid there remains legal uncertainty regarding AARTO.
In response to the dire situation of increased road fatalities over the summer holiday period and other road safety issues, as announced by Minister Mbalula on 18 January, OUTA believes the Department of Transport has been clutching at straws for far too long in its efforts to reduce this scourge.
The Minister reported 1 675 road fatalities over the festive period, a 14% increase on the previous period. Gauteng, where AARTO has been running for several years, reported a 15.5% increase in fatalities (275 fatalities, up from 238).
“If AARTO was indeed the silver bullet, as government suggests, then why has it not had any meaningful impact on the number of road fatalities in Gauteng over the past decade? Laws and regulations are meaningless unless these are effectively enforced, which can only be achieved through improved professional visible policing. In addition, the driver actions causing these issues are criminal offences and not the lesser offences that AARTO regulates,” says Van Heerden.
We note that in Minister Mbalula’s statistics he refers to policing efforts which involved running 651 roadblocks, having 4 251 unroadworthy vehicles “discontinued” and 4 073 vehicles impounded. While this may sound impressive, something is clearly amiss if our fatalities continue to climb. We believe these numbers are miniscule in the light of over 10 million registered vehicles in South Africa.
OUTA CEO Wayne Duvenage says AARTO and its regulations are steeped in design flaws and the system has struggled to get off the ground for over 13 years. “More worrying though, is whether the state will acknowledge its poor habit of ticking the ‘public consultation box’ by way of meaningless roadshows, and a blind belief that laws and regulations are sufficient for the introduction of complex schemes,” said Duvenage in an opinion piece published today, emphasising that public buy-in is essential.
“The notion that administrative systems that rack up points for bad behaviour will somehow solve our high levels of road fatalities and poor driving culture is a grossly flawed one. Addressing the carnage on our roads will need to be done through visible and professional policing, where law enforcement officers are trained to engender a culture of good road behaviour, while focusing on the removal of unlicensed drivers and the numerous unroadworthy and unlicensed vehicles that proliferate our roads.”
Just because the demerit system works in other countries does not mean it will work in South Africa, says Duvenage. “In those countries where these systems are successful, they have excellent administrative competencies and vehicle registry systems that are accurate and interconnected to other areas of government administration, which operate at a high degree of efficiency,” he says.
“OUTA’s court challenge has in fact done the Department of Transport a favour, by preventing another embarrassing ‘e-toll-style’ failure to another state-managed scheme. One sincerely hopes the department will now take this opportunity to engage with the many stakeholders who have tried to raise the flags and point out the scheme’s many flaws and unworkable processes, let alone its unconstitutional situation.”
A soundclip with comment from Andrea van Heerden is here.