OUTA goes to court to stop AARTO

The Organisation Undoing Tax Abuse (OUTA) has filed a high 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.

The respondents are the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Authority (RTIA), and the RTIA’s Appeals Tribunal. The Minister of Transport and the RTIA have filed notices to oppose the application and they have until the end of September to file their opposing papers.

The Administrative Adjudication of Road Traffic Offences Act (AARTO Act) was passed in 1998 and creates a single national system of road traffic regulation and enforcement through the judiciary. The AARTO Amendment Act, passed in 2019 but not yet in operation, moves the enforcement of traffic laws to an administrative system. When the amendment comes into force, the AARTO system will be rolled out nationwide and the driver demerits points system will commence.

The AARTO Amendment Act was signed into law by the President and published in the Government Gazette in August 2019, but a date for it to come into effect must still be gazetted. In January, Minister of Transport Fikile Mbalula said the amendment would come into effect in June, but this was later delayed due to the effects of Covid-19.

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.

The application is supported by an affidavit by Advocate Stefanie Fick, OUTA’s Director of the Accountability Division.

The 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.

“These constitutional inconsistencies of the AARTO Act and the Amendment Act lie at the very core of both Acts and are not capable of severance without negating the fundamental purpose of the two Acts,” says Fick in her affidavit.

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. “Given the serious consequences that may follow an infringement, such service is manifestly inadequate,” says Fick.

The court papers

The OUTA notice of motion and founding affidavit outlining the case are here.

Voice note by Stefanie Fick