The Concourt will hear OUTA’s case against AARTO on 15 November

In January, the high court declared the AARTO law to be unconstitutional and now the Concourt must decide whether to confirm that order. OUTA’s application to overturn AARTO is opposed by the Minister of Transport, the RTIA and the RTMC, while the City of Cape Town is now also calling for AARTO to go.

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02/11/2022 11:34:18

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The Concourt will hear OUTA’s case against AARTO on 15 November

On Tuesday 15 November, the Constitutional Court (Concourt) will hear argument on OUTA’s case to have the Administrative Adjudication of Road Traffic Offences Act (AARTO) and the AARTO Amendment Act declared unconstitutional.

AARTO is the law which moves road traffic infringements out of the ambit of the Criminal Procedure Act and thus the courts, and into an administrative process. Most of the AARTO law already applies in the City of Johannesburg and the City of Tshwane but not the rest of South Africa; this excludes the demerit system linked to driving licences. The AARTO Amendment Act was intended to roll the law out across the country and add the demerit system.

The Concourt case is a follow-up to the case which OUTA won in the Pretoria High Court in January 2022, when that court declared the AARTO Act and the AARTO Amendment Act to be unconstitutional, on the grounds that the law encroached on provincial and local government compentencies. The high court’s declaration of unconstitutionality is on hold pending its confirmation by the Concourt. On 3 February 2022, OUTA filed an application in the Concourt for confirmation of unconstitutionality.

Various legal actions emerged in this matter.

These were: OUTA’s initial application for confirmation on unconstitutionality; an appeal against the high court ruling by the Minister of Transport and the Road Traffic Infringement Agency (RTIA); an application by the Road Traffic Management Corporation (RTMC) to intervene to oppose OUTA’s application; and, in September, an application by the City of Cape Town for admission as an amicus curiae (friend of the court), arguing in favour of the unconstitutionality of the law as encroaching on local government competencies. 

The Concourt has admitted the RTMC as the fifth respondent and the City of Cape Town as amicus curiae.

The OUTA application and the appeal applications will all be heard as a single matter on 15 November.

The parties

OUTA is the applicant in the main application, asking for the confirmation of the high court’s order of unconstitutionality.
The respondents are:
The Minister of Transport;
The Minister of Cooperative Governance and Traditional Affairs;
The Road Traffic Infringement Authority (RTIA);
The RTIA Appeals Tribunal;
The Road Traffic Management Corporation (RTMC).
Of the respondents, the Minister of Transport, the RTIA and the RTMC are participating and all oppose the declaration of unconstitutionality.
The City of Cape Town is the amicus curiae, and supports the declaration of unconstitutionality.

Who wants what

OUTA wants the AARTO Act and AARTO Amendment Act declared unconstitutional and invalid, arguing that they usurp the executive authority of local and provincial government on traffic matters on municipal and provincial roads. If the Concourt finds against OUTA on this aspect, OUTA seeks an order declaring section 30 of the AARTO Act and section 17 of the AARTO Amendment Act unconstitutional, on the grounds that these fail to provide for adequate service of notices on infringers. If the Concourt confirms invalidity, OUTA asks for this to be immediate, to prevent government from incurring significant cost from rolling out the law nationally.

The Minister of Transport wants to keep the AARTO law, and thus asks the Concourt to overturn the high court ruling of invalidity. If the Concourt confirms invalidity, then the Minister asks for this to be suspended for 24 months to allow Parliament time to rectify the law. The Minister says this is because AARTO could be limited to national traffic regulations.

The RTIA wants to keep the AARTO law and asks the Concourt to overturn the high court order, saying the high court order is extraordinary in its reach and effect as it declared the entire law and amendment unconstitutional. If the Concourt confirms invalidity, the RTIA asks for this to be suspended for two years. On OUTA’s alternative challenge on service of documents, the RTIA says this should be remitted to the high court if a decision is needed.

The RTMC wants to keep the AARTO law and asks the Concourt to overturn the high court order. It says AARTO falls within the category of powers entrusted jointly to the national, provincial and local government. If the Concourt declares AARTO invalid, the RTMC asks for this to be suspended for 18 months. If the Concourt finds in favour of OUTA’s alternative argument on the service of documents, the RTMC asks for this aspect to be severed from the law.

The City of Cape Town wants AARTO to be overturned, saying that enforcement and adjudication should reside at the municipal not national level. The City also says that AARTO adversely affects local government’s financial and fiscal powers, which was not raised in the high court case, by both restricting its revenue from traffic fines and imposing additional operational expenditure on it.

Road safety: 89 003 deaths in seven years but no solutions

OUTA believes that road safety is a serious issue which is not getting the attention and resources it requires, and that AARTO is not the solution as it is focussed on revenue collection rather than road safety. OUTA believes that government should significantly improve road safety, by adopting international best practices relating to road safety, monitoring these and making evidence-based decisions.

South Africa’s road deaths are among the highest in the world. It is widely accepted that this is a serious problem.
Traffic laws in themselves have little value unless they are implemented, and current implementation is inadequate.
The International Transport Forum reported that South Africa had 22.4 traffic deaths per 100 000 inhabitants in 2018, compared to the European Union’s 4.9 deaths per 100 000 inhabitants.
The RTMC estimates the cost of crashes (human casualty costs, vehicle repair costs and incident costs) for 2021 at R188.31 billion, including the cost of 10 611 fatal crashes in which 12 545 people died. Compare this to the total national Health vote of R64.531 billion for 2022/23. Over the last seven years, the RTMC recorded 89 003 road deaths, contributing to the estimated total cost of crashes for that period of R1 151.52 billion. There are no estimates of serious injuries.
Speed is frequently identified as a factor contributing to crashes and their severity. Lowering speed limits on both urban and rural roads is often recommended to improve road safety. In February 2022, the RTMC recommended to Parliament’s Portfolio Committee on Transport that: the speed limit be lowered from 60km/h to 50km/h and from 120km/h to 110km/h (other researchers and authorities recommended even lower limits); improved enforcement of consequences for drunk driving; improved pedestrian safety campaigns; and enforcement of use of seatbelts. The RTMC had, during 2021, recorded 22 766 cases of driving without licences (but only 53 arrests for this) and 28 779 unlicenced vehicles.
South African legal vehicle loads are among highest in the world at a gross combined mass of 56 tons, and this excludes any illegal overloading.
An improved rail freight system would help take heavy loads off the roads.
The Road Accident Fund was set up to provide assistance to road accident victims and their families but has instead been milked by lawyers and the corrupt.
In October 2022, the Special Investigating Unit found massive corruption in the driving and vehicle licencing systems. The SIU referred 190 190 driving licences for cancellation due to corruption and another 190 173 linked to deceased motorists for cancellation. Such problems obviously have a severe impact on road safety.
OUTA believes that the statistics on crashes are inadequate. For example, there do not appear to be any statistics on injuries or permanent disabilities. Data should be collected not only from police but also from health facilities. A database is needed which includes casualty figures, road user behaviour and enforcement is needed, to enable essentials such as risk mapping, progress monitoring and international benchmarking.
OUTA believes the areas which need further action are: traffic law enforcement and compliance; operator, vehicle and driver fitness; infrastructure, management and information systems; and communication and public education.

More information on this case

A soundclip with comment by OUTA Senior Legal Project Manager Andrea van Heerden is here.
Background on this case and copies of the court papers are here.

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