New AARTO regulations will not stand in court

Legal conflicts and constitutional uncertainty just some of many problems that hinders implementation

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18/11/2020 12:36:56

                                                                                                                                                                                                                                    New AARTO regulations will not stand in court

                                                                                                                                                                                                                                    The Organisation Undoing Tax Abuse (OUTA) says the latest regulations to the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act will not withstand legal scrutiny.  The administrative burden will also make enforcement virtually impossible, making the Act’s purpose of road safety unattainable.

                                                                                                                                                                                                                                    The organisation submitted its comments on the proposed regulations to the Department of Transport and the Road Traffic Infringement Agency, and said it is ready to challenge the matter in court if the Minister of Transport does not go back to the drawing board.

                                                                                                                                                                                                                                    “Our legal team studied the proposed regulations, and it is 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.  It may even open the door for more corruption in the form of bribes,” says Andrea Korff, Senior Legal Project Manager at OUTA.

                                                                                                                                                                                                                                    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, instead of ensuring a drop in road accidents and fatalities or more compliance to the law, the only result seems to be a worrying increase in lawlessness as well as mortality rates due to road accidents.  

                                                                                                                                                                                                                                    “If increased road safety was the goal, why is the proposed administrative process and system of the Amendment Act 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.”

                                                                                                                                                                                                                                    OUTA emphasised its concern over South Africa’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,” says Adv Stefanie Fick, Executive Director of OUTA’s Accountability Division.

                                                                                                                                                                                                                                    Fick also said that it is highly unlikely that AARTO will be implemented successfully judged by the various problems irate motorists frequently experience at traffic departments countrywide. “Look at the current chaos with the renewal of drivers and vehicle licences in Gauteng. We doubt that the Road Traffic Infringement Agency (RTIA), who will administer AARTO, will do any better.”

                                                                                                                                                                                                                                    “Over the last three years, OUTA has actively participated in all the stages of public input into the drafting of the AARTO Amendment Act. We attended workshops, presented our own workshop and attended public hearings across the country. In addition to this, we made submissions to Parliament and even wrote to the President twice. We also launched a constitutional court challenge against the AARTO Act as well as the AARTO Amendment Act.”

                                                                                                                                                                                                                                    OUTA’s legal team identified various problems with the proposed new AARTO regulations, including:

                                                                                                                                                                                                                                    • The electronic delivery of AARTO notices (via SMS or e-mail) presents an unacceptable risk for motorists who may overlook them. Non-adherence can have serious consequences. 
                                                                                                                                                                                                                                    • There is too much uncertainty over the appeal process regarding the application for refunds of penalties and fees.
                                                                                                                                                                                                                                    • Certain conflicting legalities: While proposed 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, 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 prescribed appeals process, where decisions can be reviewed or appealed, will more than likely result in administrative backlogs as the single Appeals Tribunal, run by a chairperson and eight part-time members, will not be able to handle countrywide appeals and or reviews. OUTA believes this is unrealistic and will more than likely force ordinary citizens to rather pay a fine (whether guilty or not) to avoid the administrative hassle.
                                                                                                                                                                                                                                    • 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.  OUTA believes 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.

                                                                                                                                                                                                                                    Voice note by Adv Stefanie Fick here.
                                                                                                                                                                                                                                    The submission is here

                                                                                                                                                                                                                                    Picture: OUTA

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