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OUTA

AARTO fix isn't good enough

AARTO LEGISLATION IS NOT THE ANSWER TO ROAD SAFETY

OUTA challenged the constitutionality AARTO Act and Amendment Act, won in the high court in January 2022 but lost in the Concourt in July 2023.

We want better road safety but this law prioritises money making not safety.


Promoting road safety

Where is the government's plan?

In May 2023, OUTA raised concerned about the government’s seeming inability to address road safety concerns. The Department of Transport is not living up to the promise of the National Road Safety Strategy 2016-2030, which was is aimed at reducing road-related fatalities by 50% by 2030. South Africa is a signatory to the United Nations second Decade of Action for Road Safety 2021-2030, which also aims to reduce road deaths and serious injuries by 50% by 2030.

OUTA called for improvements, including:

  • The development and use of a reliable framework for collection and reporting of road traffic crash data;

  • The development of a national strategy with measurable targets to reduce road fatalities and serious injuries;

  • Refraining from relying solely on the updated AARTO law as a solution to road safety concerns; and

  • Holding those in various positions responsible when targets are not achieved.

More information is here.

In May 2023, OUTA released an advocacy brief, Road safety as a South African concern, available here.

Challenging the AARTO law

We want to see road safety not revenue collection

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.

In July 2023, Minister of Transport Sindisiwe Chikunga announced that AARTO would be rolled out to 69 municipalities by the end of 2023 and to the rest of the municipalities by 1 July 2024. The President has still to proclaim the date from which the AARTO Amendment Act will take effect.

AARTO problems in the Tshwane and Joburg metros

In 2008, AARTO started as pilot projects in the City of Tshwane and the City of Johannesburg.

On 1 April 2010, AARTO was implemented as the enforcement framework in Tshwane and Johannesburg.

In November 2016, both metros told Parliament's Portfolio Committee on Transport that AARTO was not working (see here).

Tshwane's report to the committee said it was collecting on average about 10% of AARTO fines, and that there were administrative problems. When licences were blocked on eNaTIS due to enforcement orders, this led to an increase in unlicenced vehicles on the road, an increase in non-renewal of driving licences and non-renewal of public driver's permits, an increase in uninsured vehicles and increased non-compliance in the professional driving and transport fraternity. Tshwane called for AARTO to be implemented properly or to return to the Criminal Procedure Act system.

Johannesburg's report to the committee said that in 2010, the Road Traffic Infringement Corporation (RTMC) stopped paying the City's registered post costs for serving infringement notices, a cost of about R10 million a month, which the City couldn't afford so infringement notices weren't served. There were administrative problems and the demerit system was not tested. The failure to enforce infringement notices negatively affected compliance, and "serious and frequent road traffic violations continue to occur on a large scale since the offenders know that these will go unpunished". In April 2016, the City recommended suspending AARTO.


OUTA concerns

Below are the concerns about the AARTO law as amended by the AARTO Amendment Act which OUTA raised through various submissions and court action.

In July 2023, the Concourt ruled that the AARTO legislation was constitutionally compliant and valid.

  • AARTO has less to do with road safety and more to do with money making.

  • OUTA believes that by introducing a national system of traffic regulation, government is acting contrary to the constitution, as these competencies should solely vest with the provincial and municipal legislators.

  • OUTA believes there is a significant conflict between local ordinances and by-laws and the provisions of the AARTO amendment, as both sets of legislation aim to prosecute the same (or similar) traffic offences.

  • Fines posted or electronically emailed are deemed delivered.

  • 50% of the fines and the admin fees go to the Road Traffic Infringement Agency (RTIA), meaning local municipalities will lose 50% of the income generated from fines.

  • A road user may not in terms of the new amendment approach a court directly, to challenge a traffic infringement. Instead, the infringer is burdened with a complicated administrative process to be followed before court is even considered as an option.

  • The Tribunal that motorists countrywide can appeal to will consist of just nine people, which could lead to a major backlog in dealing with infringements.

  • We foresee an increase in bribery and corruption to avoid demerit points.

  • The act could be used to force Gauteng motorists into paying e-tolls.

  • The AARTO pilot project which ran in Johannesburg and Tshwane for 10 years failed to improve road safety or decrease the number of road fatalities.

For more on OUTA's objections to the AARTO Amendment, see:

  • OUTA letters to President Ramaphosa on 25 March 2019 and on 24 July 2019.

  • OUTA statement in April 2018 here.

  • OUTA statement in November 2017 here.

  • OUTA oral submission to Parliament on 13 February 2018 here.

  • OUTA submission on the draft AARTO Regulations in November 2020 is here.


Constitutional challenge to AARTO: The summary

OUTA challenged the constitutionality of the AARTO Act and AARTO Amendment Act in court.

This case was launched in July 2020 in the Pretoria High Court.

On 13 January 2022, the high court ruled in favour of OUTA, declaring the AARTO Act and Amendment Act unconstitutional and invalid.

A declaration of unconstitutionality must be confirmed by the Constitutional Court (Concourt) before it takes effect, so OUTA applied to the Concourt for this.  

In July 2023, the Constitutional Court dismissed OUTA's legal challenge to the AARTO legislation, ruling it constitutional and legally valid. AARTO is now due to be rolled out nationally in July 2024.

See below for the details of these cases.


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 was brought 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 pilot projects were started in the City of Johannesburg and the City of Tshwane in 2008 but failed (see reports on these projects submitted to Parliament's Portfolio Committee of Transport in November 2016 here). Statistics do not support the claim that it will lead to a reduction in fatalities on roads.

The application called 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 opposed 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. 

2022: The high court outcome

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 CCT19/22

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. In September 2022, a fourth action was added. These actions are detailed below. The Concourt heard the matters together on 15 November 2022.

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.

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. The Concourt subsequently condoned this late filing.

On 28 July 2022, the Constitutional Court provided OUTA with the Directive on how to proceed with the matter, setting it down for 15 November 2022 (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. This is included in the directive of 28 July, setting down the matter for 15 November 2022.


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.

In the directive of 28 July 2022, the Concourt admitted the RTMC as the fifth respondent.


Concourt application 4: City of Cape Town amicus curiae application

On 28 September 2022, the City of Cape Town applied to the Concourt for admission as an amicus curiae (friend of the court) in the matter. The City supports the declaration of invalidity, arguing in respect of the intrusion of AARTO on the executive competence of local government.

On 28 October 2022, the Concourt approved the City's application. The Concourt order is here.

The City has until 2 November 2022 to file written submissions and any parties wishing to respond have until 9 November.


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.


The Concourt case: Here are the positions

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. If the invalidity is confirmed, OUTA asks for the acts to be set aside with immediate effect, to avoid the state incurring costs in 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.

The Concourt granted the RTMC intervention, admitting it as the fifth respondent.

Concourt 4: The City of Cape Town amicus curiae application

The City supports the declaration of invalidity, arguing in respect of the intrusion of AARTO on the executive competence of local government.

The City says it is an issuing authority in terms of the AARTO Act. It calls for enforcement and adjudication in terms of the AARTO system to reside at the local government level not at national level. The City also says that AARTO adversely affects local government financial and fiscal powers, and that these matters were not raised in the high court case. Municipalities are only allowed to raise own revenues from sources assigned by the Constitution and in national legislation, and the City says AARTO both restricts its revenue from traffic fines and imposes additional operational expenditure on it.

The City's application and supporting affidavit are here.


The Concourt hearing of 15 November 2022: the arguments

All the outstanding applications will be heard on this date.

• The OUTA heads of argument, filed on 5 September 2022, are here.

• The RTMC heads of argument, filed on 28 September 2022, are here.

• The RTIA heads of argument, filed on 13 October 2022, are here.

• The Minister of Transport heads of argument, filed on 14 October 2022, are here. 

The Concourt's media summary of the case, written before the hearing of 15 November 2022, is here.


July 2023: Concourt rules AARTO is valid

On 12 July 2023, the Constitutional Court ruled that the AARTO legislation is constitutionally valid and thus legal, dismissing OUTA's legal challenge to the law.

The Concourt judgment was written by Chief Justice Raymond Zondo and was unanimous.

See more on this here.

The Concourt judgment is here and the Concourt's summary of the matter is here.


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AARTO: Frequently asked questions

The demerit point system will NOT be used to enforce e-tolls.  According to the proposed AARTO regulations (which sets out how many demerit points will be awarded for each infringement), the non-payment of e-tolls or the “ignoring of a toll-sign” does not incur any demerit points.

Therefore, you will not incur demerit points for ignoring a toll-sign (e-tolls).

AARTO OFFENCE OR INFRINGEMENT FLOW CHART

Odoo - Sample 1 for three columns

Offence or infringement 

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Odoo - Sample 2 for three columns

Courtesy letter

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Odoo - Sample 3 for three columns

Enforcement order

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