Aarto heading to court – again

The controversial Administrative Adjudication of Road Traffic Offences (Aarto) Act may be the subject of litigation again, this time for the reinstatement and enforcement of old fines that the Organisation Undoing Tax Abuse (Outa) and fines administrator Fines4U consider unlawful.

The Road Traffic Infringement Agency (RTIA) – tasked with implementing Aarto – however, denies any non-compliance with the act. It says: “The Aarto Act does not prescribe any time limit for the issuance of the enforcement orders.”

This comes barely a month after the Constitutional Court ruled the act was constitutional following an Outa challenge. 

Read: Like it or not, demerit points are coming

Aarto has been in operation in Johannesburg and Pretoria for over a decade, with the government failing to honour several target dates for countrywide implementation. The points demerit system, a crucial element of Aarto aimed at improving road safety by removing serial offenders from the road, has not been implemented anywhere yet.

Transport Minister Sindisiwe Chikunga has since announced that Aarto will be implemented countrywide on 1 July next year, presumably with the demerit points system.

Shivers down the spine

The thought of this “sends cold shivers down my spine,” says Advocate Stefanie Fick, executive director for accountability and public governance at Outa. “If we cannot trust the RTIA now to follow due process, with implementation limited to Johannesburg and Pretoria, how can we even consider countrywide roll-out,” she asks.

At issue is the reinstatement of infringement notices (fines) issued in terms of Aarto as long ago as 2019, according to Fines4U owner Cornelia van Niekerk. She says these are now converted into enforcement orders by the RTIA outside the strict timelines prescribed in the act. 

Aarto is an administrative system that starts with issuing an infringement notice to an alleged infringer. If they do not respond within a prescribed period, it escalates to a courtesy letter, and if that is also ignored, an enforcement order is issued. Each escalation has cost implications, and with an enforcement order comes a block on all eNatis transactions, like licence renewals, until the outstanding amount is paid.

Read: What to do when blocked from renewing licences by ‘enforcement order’

There are other possible options for the motorist along the process.

Outa wrote to the RTIA early in July, stating it “trusts that the conversion of infringement notices to enforcement orders in the absence of due process is attributed to technical oversight and not malicious collection practices.” 

The organisation gave the RTIA a few days to:

• “Cease to unlawfully issue enforcement orders and to comply with the requirements as set out in Section 20(2); and,
• Undo all the enforcement orders that were unlawfully issued.”

On 16 August, Fines4U sent an attorney’s letter to the RTIA on behalf of several clients pertaining to enforcement orders issued for more than 5 000 vehicles. 

It referred to a previous court case Fines4U won against the RTIA about the same matter, where the court ruled the timelines provided for in the act peremptory. “Non-compliance therewith has the result that the total process is fatally flawed,” reads the letter.

Read:
Millions of Aarto fines must be cancelled – Fines4U [Feb 2017]
RTIA moves to appeal Fines4U Aarto judgement [Apr 2017]
NPA instructs historic traffic fines to be cancelled [Sept 2017]

Fines4U gave the RTIA 10 days to cancel all penalties imposed on its clients and withdraw infringement notices, courtesy letters and enforcement orders issued against them. The company further demanded the removal of any such notices posted on the eNatis system since it resulted in them being unable to renew their vehicle licences. 

No prescription

The RTIA, however, issued a statement on Wednesday, 30 August, saying it has taken note of Outa and Fines4U’s concerns but “state[s] that it did not contravene any aspect of the Aarto Act, and the registrar has made a commitment to investigate any incidents of non-compliance, if they do exist.”

According to the RTIA, “The Aarto Act does not prescribe any time limit for the issuance of the enforcement orders. The issuing authorities (municipalities) and RTIA, through existing processes, always endeavour to issue both the infringement notices and courtesy letters within the prescribed timeline. 

“It is the RTIA[‘s] firm view that through prior served documentation in the form of infringement notices and courtesy letters, the infringer remains aware of the existence of the infringement.”

Instead of cancelling non-compliant notices, the RTIA advises “infringers who have been issued with enforcement orders that do not comply with legislated processes, to lodge revocation applications in order to overturn such enforcement orders. However, they still need to follow the prescribed process for lodging such applications.”

Van Niekerk tells Moneyweb that she has instructed senior council to proceed with a legal challenge against the RTIA. According to Fick, Outa supports the action and is looking into the legal options to get involved. 

Fick accuses the RTIA of relying on the fact that motorists would rather pay the fine than incur the legal cost to challenge it in court. 

She says Outa does not encourage motorists to ignore lawfully-issued traffic fines, but insists that government agencies like the RTIA follow due process. 

Read: City of Cape Town to sidestep Aarto