The planned national rollout of the Administrative Adjudication of Road Traffic Offences (Aarto) Act from July 1 this year, which might be used to enforce the payment of e-tolls, is facing two possible legal challenges.
Minister of Transport Fikile Mbalula said during his budget vote speech last month his department was on track with its target to proclaim July 1 2021 as the effective date for the nationwide rollout of Aarto.
“We have previously made a commitment to the rollout of the Aarto Act of 1998, bolstered by the Aarto Amendment Act, which was signed into law by the President on 13 August 2019.
“Over the medium term, we have allocated R545 million to the Road Traffic Infringement Agency (RTIA) to fund the rollout. R215 million has been allocated for the current financial year,” he said.
However, the planned national rollout of Aarto from July 1 this year might be delayed because of possible legal challenges to the Act by the Organisation Undoing Tax Abuse (Outa) and the City of Cape Town.
Outa filed an application in the Pretoria High Court in September 2020 in terms of which has applied for the Aarto Act and Aarto Amendment Act to be declared unconstitutional.
Advocate Stefanie Fick, the head of Outa’s accountability division, said it is waiting for the Deputy Judge President to allocate a court date for the case to be heard.
Fick confirmed there is nothing at this stage to stop the government from implementing Aarto from July 1 because Outa did not include an interdict application with its constitutional challenge because President Cyril Ramaphosa still has to publish a date for Aarto’s implementation in the Government Gazette.
“He has not done that. Once that is done, then we will probably contemplate some type of interdict or go to the government and say can we agree not to implement Aarto before the constitutional challenge is done and dusted,” she said.
Alderman JP Smith, Mayoral Committee Member for Safety and Security at the City of Cape Town, said the City is “considering its options to challenge the implementation of Aarto specifically with regard to its functionality because we believe it to be ineffective in reducing road fatalities”.
Smith said the other objection would be related to the powers of law enforcement officers “where Aarto legislation appears to conflict with the local government mandate as far as it relates to traffic and parking”.
He said the city has serious concerns about the efficacy of Aarto and its ability to reduce road fatalities, which have been previously highlighted by the pilot projects in Gauteng.
Smith said Aarto was piloted previously in the City of Joburg and Tshwane, where both metros reported failures with Aarto and its implementation, one example of which relates to the “postage of the fine notice”.
Other examples can be found in the report Pilot of Administrative Adjudication Road Traffic Offences Act: Tshwane & Johannesburg Metropolitan Municipalities briefing, Standing Committee on Transport, National Assembly (November 11, 2016). Full report here.
The Automobile Association of South Africa (AA) is also opposed to the implementation of Aarto.
The AA said last year that the draft regulations of the Aarto Act “make a mockery of the claim that the law is intended to improve road safety in South Africa and rather point to the creation of a mechanism to improve revenue collection”.
AA spokesperson Layton Beard told Moneyweb last week the association does not believe the system is ready to be implemented.
Beard added that the AA made a submission to the Parliamentary Portfolio Committee on Transport on Aarto in October last year in which it raised a number of concerns about the Act.
Both Outa and the AA have raised concerns about the Appeals Tribunal, which will adjudicate on appeals by motorists about infringement notices.
These concerns relate to the fact that the tribunal is a national body of nine part-time members and will be unable to handle the workload arising from the millions of traffic fines issued countrywide after Aarto is implemented.
Fick said an official at the RTIA had indicated that they are looking at establishing an Appeals Tribunal in each province.
“But you will have to change legislation to do that because the Aarto Act only makes provision for one tribunal. I’m 100% certain that they are not ready to start on July 1 2021,” she said.
Fick added that the final Schedule 3 regulations to the Aarto Amendment Act, which lists the offences and fines applicable to these offences, has also not yet been published after draft regulations were published for public comment in November 2019.
She said the existing Schedule 3 could be used but stressed: “If they say they are ready for roll out in July there are a lot of things that they have to finalise before they can do that”.
Beard said the AA remains concerned about the Appeals Tribunal because no case has been advanced which would assure that it would be impartial and uphold a consistent standard of adjudication.
“It is unclear how the members of the Appeals Tribunal would be paid but their emoluments would almost certainly derive from traffic fine revenue.
“There is thus the potential for a conflict of interest and an incentive to find in favour of the RTIA rather than allowing the outcome to follow the facts in each case,” he said.
Beard said a number of other provisions in the Aarto Act were of concern, including that motorists will have to pay a R100 levy in addition to the fine to get an infringement notice, which is unconscionable.
He also questioned how a motorist will be refunded this levy if their appeal is successful.
Fick said the draft Schedule 3 regulations to the Aarto Amendment Act still makes provision for the enforcement of e-toll payments.
“If you ignore a [e-toll] road sign and you are supposed to pay tolls and you don’t pay tolls, they can hit you on both.
“Can you imagine each and every person going underneath a gantry, getting a fine. Each gantry and a failure to pay is a separate offence. It will be an administrative nightmare,” she said.
However, the AA does not believe there is any link between the implementation of Aarto and e-tolls.
The government has missed several self-imposed deadlines to make a pronouncement on the future of e-tolls.
Mbalula said during his budget vote speech on May 21 that a decision by the government on the future of the e-toll system on the Gauteng Freeway Improvement Project (GFIP) is “imminent”.
Gauteng transport MEC Jacob Mamabolo stated a few days later during a radio interview that e-tolls are “being scrapped” but later backtracked and distanced himself from his own comments.
Acting Minister in the Presidency Khumbudzo Ntshavheni subsequently said during a post Cabinet meeting media briefing on May 27 that a decision on the future of e-tolls had not yet been taken by Cabinet.