The Administrative Adjudication of Road Traffic Offences Act of 1998 (the AARTO Act) sets up a single national system of road traffic regulation, to hold motorists to account for traffic violations.
The AARTO Amendment Bill, which was tabled in 2015, passed by Parliament in 2017 and signed by the President in August 2019. It is waiting for a commencement date to be gazetted before it comes into effect.
In 2019, new regulations were issued in terms of the AARTO Act, updating the 2008 regulations.
In 2020, new regulations were issued in terms of the AARTO Amendment Act, updating the 2019 regulations.
The AARTO Act of 1998 is here.
The AARTO Amendment Act of 2019 is here.
The new AARTO regulations of 2020 are here.
On 1 July 2021, the Department of Transport delayed the implementation of AARTO, and instead announced rollout details. See here.
The controversial amendment to AARTO (the Administrative Adjudication of Road Traffic Offenses Act, 1998), has been passed but its shortcomings have not been addressed. The AARTO Amendment Bill was passed by Parliament in September 2017 and signed by the President in August 2019, but it is not yet in effect as a date for this has not been gazetted. The Minister of Transport said it would be implemented in June 2020, but this was delayed and a new date of June 2021 was punted; this again was delayed. On 1 July 2021, the Department of Transport delayed the implementation of AARTO, and instead announced rollout details. See here.
AARTO and implementation
On 13 August 2020, OUTA submitted a request for access to information in terms of the Promotion of Access to Information Act (PAIA) to the Road Traffic Infringement Agency (RTIA), requesting information relating to the readiness of roleplayers in the national AARTO roll out. The list information requested is here.
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. On 22 September 2021, the RTIA provided OUTA with the information requested, and is due to pay OUTA’s costs in the legal action.
On 7 July 2021, OUTA wrote to the Road Traffic Infringement Authority (RTIA), asking why the RTIA's explanations of AARTO on its website omitted information about alleged infringers' rights to approach a court to oppose infringement notices. The letter is here.
2020: The constitutional challenge in the Pretoria High Court
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. By mid-September 2020, the Minister of Transport and the RTIA had filled notices to oppose the application and subsequently filed their opposing papers.
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 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.
OUTA’s Constitutional Challenge was heard on 18 October 2021, before the Honourable Judge Basson in the North Gauteng High Court. Judge Basson delivered her judgment on 13 January 2022 and agreed with OUTA’s submission that both the AARTO Act and the AARTO Amendment Act, should be declared unconstitutional and invalid. OUTA will approach the Constitutional Court to confirm the High Court’s Judgment, declaring both the act unconstitutional an invalid.
2020: The high court papers
The OUTA Notice of Motion and Founding Affidavit outlining the case in the Pretoria High Court are here.
The state oppose the application. The answering affidavit for the First Respondent (Minister of Transport) is here: Part 1 and Part 2. The answering affidavit for the Third Respondent (RTIA) is here.
OUTA’s replying affidavit is here.
OUTA's heads of argument are here.
Here are the heads of argument for the First and Third respondents.
The case was set down in the Pretoria High Court for 18 and 19 October 2021, the Notice of Set down (Special Allocation) is here.
On 13 January 2022, the Pretoria High Court ruled in favour of OUTA, declaring the AARTO Act and the AARTO Amendment Act unconstitutional and invalid. The judgment is here and OUTA's statement at the time is here.
2022: The Constitutional Court case
On 3 February 2022, OUTA applied to the Constitutional Court for confirmation of the Pretoria High Court ruling (the Concourt must confirm any judgment declaring a law to be unconstitutional). The application is here.
By mid-April 2022, there were three three legal actions in the Concourt and confusion over whether government is defending its law.
Directions from the court are awaited. These three actions are detailed below.
Concourt application 1: OUTA’s application for confirmation (CCT 19/2022)
On 3 February, OUTA applied to the Concourt for confirmation of the Pretoria High Court ruling. OUTA’s application is in terms of Rule 16(4) of the Constitutional Court Rules, which deals with confirmation of an order of constitutional invalidity.
Rule 16(4) states that those seeking to confirm an order of unconstitutionality shall, within 15 days of the order, lodge an application for confirmation with the Concourt; the matter shall be disposed of in accordance with directions given by the Chief Justice. These directions are still awaited.
The four respondents (the Minister of Transport, the Minister of Cooperative Governance and Traditional Affairs, the Road Traffic Infringement Authority, and the RTIA Appeals Tribunal) had 15 days to file a notice of intention to oppose OUTA’s application.
Only on 24 February, the Minister of Transport filed notice of intention to oppose. The Minister then had 15 days to file an answering affidavit, but OUTA received the Minister's affidavit only on 6 May 2022.
On 28 July 2022, the Constitutional Court provided OUTA with the Directive on how to proceed with the matter (see here and see below – "The Concourt Directive setting out the way forward" – for details of this).
Concourt application 2: The notice to appeal
On 7 February, the Minister of Transport and the RTIA separately filed their notices of appeal at the Concourt, setting out the reasons they wish to appeal the high court ruling. This is separate to OUTA’s confirmation application and follows a different process in the Concourt.
The same day, OUTA filed a notice of intention to oppose the appeal.
The Minister’s application is also brought in terms of Rule 16, but a different section. Rule 16(2) states that those who want to appeal against an order of constitutional invalidity should lodge a notice of appeal – and the grounds for the appeal – with the Concourt within 15 days of the court’s order of invalidity; the matter shall be disposed of in accordance with directions given by the Chief Justice. These directions are still awaited.
Concourt application 3: RTMC intervention
On 8 March, the Road Traffic Management Corporation (RTMC), a state-owned entity that reports to the Minister of Transport, applied to the Concourt for permission to intervene and be joined as the fifth respondent in the case. The RTMC wants to join the appeal against the high court judgment; failing that, the RTMC wants to oppose OUTA’s application for confirmation of constitutional invalidity.
The RTMC was not party to the high court case, and this is the first indication it is interested in the matter.
On 15 March, OUTA filed notice of intention to oppose the RTMC’s intervention application and, on 7 April, filed an answering affidavit in support of this.
The Concourt Directive setting out the way forward on all three matters
On 28 July 2022, the Constitutional Court provided OUTA with the Directive on how to proceed with case CCT 19/22 (see here).
This Directive sets down to be heard on 15 November 2022, effectively combines all three matters, admits the RTMC as the fifth respondent, condones the late filing of the Minister's answering affidavit, directs OUTA to send written arguments to the Concourt on or before 9 September 2022, and directs the five respondents (the two ministers, the RTIA, the RTIA Appeals Tribunal and the RTMC) to send written arguments – including merits of their appeals – to the Concourt on or before 22 September 2022.
Here are the positions so far
Concourt 1: OUTA’s application for confirmation
The high court accepted the core submissions by OUTA. The judgment found that both AARTO acts were unconstitutional and invalid because by setting up a national system to enforce traffic and parking laws, AARTO usurps the exclusive executive authority of local government over local roads and the authority of provincial government over provincial roads.
In the confirmation application, OUTA asked for the matter to be decided as soon as possible, as government intends rolling out AARTO.
The confirmation application papers:
The January 2022 Pretoria High court judgment that declared AARTO unconstitutional is here and OUTA’s comment at the time is here.
OUTA’s application to the Concourt to confirm the high court ruling on 3 February 2022 is here.
Rule 16 of the Concourt Rules is here.
The Minister of Transport’s notice to oppose of 24 February 2022 is here.
The Minister of Transport's answering affidavit, received by OUTA on 6 May 2022, is here.
The Concourt Directions of 28 July 2022 on the case are here.
Concourt 2: The notice to appeal
The notices by the Minister and the RTIA say that the high court erred in granting the declaration of constitutional invalidity.
The Minister’s notice says:
Previously all traffic contraventions were administered in terms of the Criminal Procedure Act and AARTO was created to improve efficiency;
AARTO establishes a procedure for the adjudication of infringements, without taking over enforcement powers of provinces and municipalities;
Road traffic regulation is a concurrent national and provincial legislative competence;
The AARTO process is administrative and is preceded by officers of relevant authorities issuing infringement notices;
AARTO does not end the criminal process under the Criminal Procedure Act as this may be used as a last resort;
The high court failed to identify the provisions in AARTO which should not have been included, so did not make an order severing the constitutionally valid provisions from the invalid provisions, instead declaring the entire AARTO Act and AARTO Amendment Act invalid.
The RTIA notice says:
The court erred in finding that the question for determination is whether national government has the competence to legislate on matters relating to provincial and municipal roads;
The court erred in finding that AARTO creates a single national system of road traffic regulation and seeks to regulate every aspect of road traffic;
The court erred in finding that the power to enforce traffic laws on municipal roads has historically been conferred on municipalities;
The court erred in finding that national government competencies excluded those carved out by a “bottom up” approach, which removed matters dealing with provincial roads or municipal roads, traffic and parking.
The notice of appeal papers:
The Minister of Transport’s notice of appeal of 7 February 2022 is here.
The RTIA notice of appeal of 7 February 2022 is here.
OUTA’s notice of intention to oppose this of 7 February 2022 is here.
Concourt 3: RTMC intervention
The RTMC wants OUTA’s application for constitutional invalidity to be dismissed but, if OUTA succeeds, then the RTMC wants the declaration of invalidity to be suspended for 18 months to allow the law to be remedied.
The RTMC makes arguments which were not placed before the high court, saying this is not new evidence but rather context on the legislative scheme and the history of road traffic regulation.
The RTMC argument includes that:
AARTO is at the core of RTMC’s statutory mandate, it is an issuing authority under AARTO and was established as a partnership between national, provincial and local government on traffic issues;
The RTMC should have been cited as a respondent in the high court case;
AARTO is not concerned with matters related to provincial roads and traffic or municipal roads and parking;
The substance and goals of AARTO are primarily concerned with road traffic regulation and thus fall within the purview of national legislation;
The history, context, purpose, substance and goals of AARTO make it constitutionally valid;
The high court answered the wrong constitutional question in its judgment.
OUTA's answering affidavit, by Advocate Stefanie Fick, includes this:
The RTMC fails to explain why it did not intervene in the high court case, which was launched in the high court in July 2020 and heard in October 2021. “Between the institution of the matter and the hearing, the litigation received extensive publicity in national and regional newspapers, on radio and in news broadcasts on television”. The media also reported on the court hearing in October 2021.
The RTMC is a state-owned enterprise whose shareholders are the Minister of Transport (the first respondent in the matter) and the provincial MECs for Transport, who serve on a shareholders committee that meets four times a year and is involved in the governance of RTMC.
“In light of the close relationship between the Minister, the shareholders committee and the RTMC, and the widespread media coverage of OUTA’s constitutional challenge to AARTO and the Amendment Act, it is inconceivable that the RTMC was not aware of the litigation when it was first instituted or that it did not become aware of it before 18 October 2021, the date of the hearing in the high court,” says Advocate Fick in her affidavit.
The intervention papers:
The RTMC application for intervention of 8 March is here and the founding affidavit is here.
OUTA’s notice of intention to oppose of 15 March is here.
OUTA’s answering affidavit by Advocate Stefanie Fick of 7 April is here.
