The AARTO legislation

The draft Amendment in 2019 to the AARTO Regulations is here. These are the regulations which are open for comment.

The AARTO Regulations of 2008 are here:  main part ; and Schedule 1; and Schedule 2 . These are the regulations which are being replaced.

Schedule 3 of the AARTO Regulations of 2008 is here. This schedule is retained in the 2019 draft regulations; it is the only part of the 2008 regulations which is being retained.

The First Amendment to the AARTO Regulations of 2010 is here. This is being repealed by the 2019 draft regulations.

The Second Amendment to the AARTO Regulations of 2013 is here. This is being repealed by the 2019 draft regulations.

The AARTO Act of 1998 is here.

The AARTO Amendment Act of 2019 is here. This has been signed by the President and gazetted, but the date on which it commences has not yet been gazetted. The Ministry of Transport has indicated that this is expected to be June 2020.

OUTA's assessment of the draft regulations:  

Here are some of OUTA’s comments to the Ministry in November 2020 on the update to the AARTO regulations.

Delivery of AARTO notices 

AARTO notices will be delivered electronically, which is an unacceptable risk for motorists who may overlook these. “The email, SMS or voice message could easily be treated as junk mail or spam or could simply go unopened. There is nothing in this form of correspondence that emphasizes the importance of the document to the recipient,”

Apply for Refunds of Penalties and Fees

Regulation 25 does not clarify whether an infringer who has applied for the refund and the Authority has subsequently refused the refund, has the right to appeal or review the decision to the Appeals Tribunal. “It is not expressly stated, and OUTA believes this warrants clarity from the Minister”.

Suspension of driver’s licence 

The regulation say those who’s licenses are going to be suspended due to the accumulation of the maximum demerit points may be informed by registered post or electronic means, but the AARTO Act says only registered post may be used. This makes the regulation void as it cannot amend legislation.

Rehabilitation 

There are no prescribed standards for rehabilitation programmes which drivers must undertake in order to regain lost licences. “We believe that regulation 21(4) is vague, because it does not provide clarity regarding the process of adjudication of service providers.”

Appeals 

Appeals or reviews of decisions made in terms of AARTO notices will be heard by a single Appeals Tribunal, run by a chairperson and eight part-time members. OUTA believes this will require expensive overheads and will result in a huge administrative backlog.

The appeal or review process is “cumbersome, convoluted, highly technical, costly and not accessible to ordinary South Africans”, has unrealistic time frames and looks like a money-making process “Ordinary South Africans will most probably rather elect to pay (even if they are not guilty of an infringement) to avoid the administrative hassle than to participate in a process that is nonsensical.”

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.  “We believe that the AARTO and the Amendment Act intrudes upon section 156(1)(a) of the Constitution.”

Bringing in SAPS 

The AARTO Act does not include the SAPS among those authorised to issue AARTO fines, but they are included in the regulations. The regulations thus appear to be amending the Act, which cannot be done, and also unconstitutionally interfere with the powers of the National Police Commissioner over the role of the SAPS.

Infringement Penalty Levy

The regulations say that a R100.00 infringement penalty levy is payable on all AARTO Notice that will be issued in accordance with the AARTO process.  OUTA believes the infringement penalty levy is completely exuberant, especially in the light of the fact that the Amendment Act proposes that AARTO Notices may be sent via electronic communication. “It is non-sensical to charge an alleged infringer an amount of R100.00 for an electronic notice, even if the notice is sent erroneously. 

OUTA says that 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 believe that the infringement penalty levy should be removed from the AARTO Amendment Act and its Regulations.

Enforcing E-toll compliance

Schedule 3 of the regulations says that if a person does not pay their e-Toll accounts, they 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.  “The AARTO Amendment Act and its regulations are attempting to push water uphill by breathing live in to an already collapsed and miserably failed e-Toll system.”

Keeping in mind that SANRAL processes over 2 Million e-Toll transactions a month, which if not paid will result in over 2 Million Infringement Notices being issued, only in the Gauteng area. 

AARTO, which is reliant on the E-NATIS system, will not be able to handle these large amounts of transactions a month and will therefore make the enforceability thereof impossible. “OUTA strongly believes that legislation is only effective if it can be enforced and as such believe this is unenforceable and irrational.”

Poor drafting 

OUTA listed 16 errors in cross-referencing in the regulations.

“It is abundantly clear that the regulations were drafted in haste and without due regard to the legal soundness thereof. The way these regulations were drafted makes it very difficult to read and to interpret the Minister’s express intention,”

Road safety is not prioritised 

“The current AARTO pilot project has been partially in force and in affect in the Johannesburg and Tshwane metros for the past 10 years yet has still not yielded any positive results With the Amendment to the Act and subsequently the publishing of these regulations, it is abundantly clear that the intention of the legislation and the regulations is to make money and not to promote road safety.”

“If the intention is to promote road safety, then why is the proposed administrative process and system aimed at generating money by creating a system that is not user friendly, complicated and cumbersome and in doing so forcing citizens to rather pay the fines instead of following the due process (whether guilty or not).

“OUTA remains concerned about the high level of road fatalities in South Africa. 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.”

OUTA recommends that the Minister of Transport go back to the drawing board with the regulations, as the current version will not withstand legal scrutiny.  The administrative burden will also make enforcement virtually impossible, making the Act’s purpose of road safety unattainable.