Department of Transport in race against time to fully implement Aarto

The Department of Transport is facing a race against time to be able to fully implement the Administrative Adjudication of Road Traffic Offences (Aarto) Act, including the driving licence points demerit system, even if the legislation is not declared unconstitutional.

A challenge to the constitutionality of the Aarto Act and the Aarto Amendment Act was heard in the Gauteng North High Court this week, with Judge Annali Basson reserving judgment.

This follows the Organisation Undoing Tax Abuse (Outa) applying in July 2020 to the court for both acts to be declared unconstitutional.

Read: SA’s new traffic demerit system to impose ‘stricter rules’ on motorists

Outa cited Minister of Transport Fikile Mbalula, Minister of Cooperative Governance and Traditional Affairs (Cogta) Nkosazana Dlamini-Zuma, the Road Traffic Infringement Authority (RTIA) and the RTIA Appeals Tribunal as respondents to the case.

The transport minister and the RTIA are opposing the application while the Cogta minister did not oppose it and will abide by the court’s decision.

Outa executive director Advocate Stefanie Fick on Thursday expressed confidence in a successful outcome to the case.

Aarto could be ‘off the table’

Fick said that if these acts are declared unconstitutional “Aarto is off the table” and the Department of Transport will have to go back to the drawing board.

She said the judgment will still have to go to the Constitutional Court for its stamp of approval, but Mbalula or the Department of Transport will probably appeal against any judgment declaring Aarto unconstitutional.

Mbalula announced on July 1 that Aarto will be implemented in phases with immediate effect, but the points demerit system and driver rehabilitation programmes of Aarto will only be introduced from July 1 next year.

Fick is hopeful that President Cyril Ramaphosa will not gazette the commencement date of Aarto if the court processes and any appeals related to the alleged unconstitutionality of Aarto have not been finalised by July 1, 2022.

“Although the president has signed the Aarto Act, the commencement date must still be published in the government gazette and that hasn’t happened yet,” she said.

Appeals Tribunal not in place

Fick added that it will also not be possible to implement Aarto unless the Appeals Tribunal has been appointed.

“They must still publish the nominations so that there can be public participation. That hasn’t happened. You can’t start this process without having a very vital part of Aarto in place,” she said.

In terms of the four-phase approach to the national Aarto rollout plan announced by Mbalula in July, the Appeals Tribunal is scheduled to come into full operation in the second phase, which commenced on October 1 and ends on December 31 this year.

With the disruption of the December holiday period, this means the Department of Transport now only has about 40 working days to meet the December 31 deadline to have the Appeals Tribunal fully operational.

Unconstitutionality

Advocate Matthew Chaskalson SC, appearing for Outa, listed a number of reasons why the two acts should be declared unconstitutional in court this week.

These include that the acts usurp the exclusive legislative authority of the:

• Provincial legislatures because these acts regulate road traffic and create a single, national system to do so when provincial and municipal road and traffic regulation falls within the exclusive legislative competence of the provinces under Schedule 5, Parts A and B of the Constitution.

•  Local government (under Part B of Schedule 5 of the Constitution) to enforce traffic and parking laws at the municipal level by moving the enforcement of all road and traffic laws to the national level.

Chaskalson added that these acts create a system whereby traffic laws are, by default, enforced through a national system of administrative tribunals, administrative fines and demerit points, with all road traffic “infringements” handled by the RTIA and the Appeals Tribunal, two national organs of state that are created by Section 3 and 29A of the Amendment Act.

“The above aspects of the Aarto Act and Amendment Act are inconsistent with the Constitution. These aspects go to the core of the acts and are not capable of severance. As such, the acts fall to be declared unconstitutional. This is the primary relief sought by the applicant [Outa].

“The national government did not have the power to pass national legislation regulating all road traffic,” said Chaskalson.

“By so doing it unconstitutionally invaded the exclusive legislative competence of the provinces and the exclusive executive competence of the municipalities.

“The participation or approval of the provinces cannot not cure this fundamental defect,” he said.

Chaskalson said in the event that the court declines to declare the acts unconstitutional, Outa seeks alternative relief and an order declaring that the service provisions of the Amendment Act are manifestly inadequate and are unconstitutional.

He said Section 17 removes the requirement that service under the Aarto Act “must” be personal or by registered mail.

Chaskalson said it allows service by email, SMS or voice mail but, given the serious consequences that may flow from an infringement, such service is inadequate.

“Proper service, at all stages of the adjudication process, is critical to ensuring that an infringer’s constitutional rights are protected.

Read: Payment problems surface with Aarto fines payment system

“An infringer who has not received notice of their infringement, and who would have contested it or even paid the penalty, may end up barred from obtaining a driver’s licence or banned from driving until they have overturned the enforcement order,” he said.

‘Harmony and standardisation’

Advocate Makhosi Gwala, appearing for the Minister of Transport, said the Aarto Act brings harmony and standardisation of the adjudication of road and traffic infringements nationally, regardless of where they occur in South Africa.

Gwala said this gives meaning to Section 1 of the Constitution, which provides that South Africa is one sovereign, democratic state.

He added that due to high incidents of crime in the country, the courts give priority to serious crime as opposed to traffic violations, with the result that less than 20% of the traffic cases are finalised by the courts.

“This scenario has significantly contributed to bad behavioural conduct by drivers on the road,” he said.

Gwala said Outa’s submissions in regard to the service of infringement notices are baseless, adding that service by registered mail is not excluded.

“The amendment act simply extends the scope of the method of service. It incorporates the use of other services currently offered by or that may become available in future in the post office,” he said.

The Minister of Transport also argued that if the court does rule that Aarto is unconstitutional, it should suspend the declaration of invalidity for 24 months to allow parliament to rectify this.

Outa opposed this, arguing that Aarto has not yet been rolled out nationally and the acts should be set aside with immediate effect so the state does not incur significant rollout costs, which end up as wasted costs.

Advocate William Mokhare SC, appearing for the RTIA, said the constitutional attack of the principal act on the basis of separation of powers and autonomy of local government is misplaced because it arises from a misinterpretation of the Constitution.

Mokhare emphasised that the legislation is aimed at ensuring uniform standards of road and traffic regulation and harmonisation among all spheres of government.

“We submit that the standardisation and harmonisation of road and traffic regulation will add to a better and certain regulatory environment throughout the country,” he said.