Much confusion surrounds the AARTO Act which has been in force in Johannesburg and Tshwane since 2008, and its Amendment Act which is mooted to commence nationally on 1 July 2021.
However, it seems that the Department of Transport is in a rush to implement the AARTO Amendment Act nationally. On Wednesday 3 February 2021 it tweeted:
Due to a high number of infringements that result into fatalities occurring on our roads, more South Africans are calling for the immediate implementation of AARTO. AARTO will track habitual infringers & remove them from our roads. Visit https://t.co/zopSSD824G now for more info pic.twitter.com/wLRd4oJG0B
— Department of Transport (@Dotransport) February 3, 2021
Recently, the Road Traffic Infringement Agency (RTIA) recycled an old advisory explaining the AARTO Act’s existing processes, and distributed it to the media. While it is a fairly accurate summary in terms of the current provisions of the AARTO Act, it does not explain the process which will apply if/when the AARTO Amendment Act is implemented nationally.
Although the draft regulations to the AARTO Amendment Act are not final yet, one must consider them to be the framework that will be used in the future.
The “new system” differs considerably from the current system and it is puzzling why the RTIA would choose to sow confusion among motorists who are not familiar with it. This is more especially so considering that the RTIA is the entity tasked with administering the AARTO Act and educating the public.
To assist motorists to understand what the AARTO Amendment Act will mean to them, we summarise hereunder, the processes it involves and advise motorists to familiarise themselves with it.
NOTE: Any reference to forms is to new forms which are yet to be finalised by the draft regulations.
How traffic fines are handled now
Currently, the way traffic fines are issued and progressed by the authorities in almost every jurisdiction of the country is through using the Criminal Procedure Act. As its name implies, it is a criminal process and regards all violations of traffic law to be criminal offences. These offences are prosecuted by the NPA, mainly in the lower (Magistrates’) courts. The alleged infringer is always presumed innocent until proven guilty in court.
The AARTO Act is different. It “decriminalises” all but the most serious traffic offences and subjects them to administrative processes. It does this by categorising road traffic violations as “infringements” or “offences”. Infringements are dealt with administratively. Criminal offences are prosecuted in criminal courts.
When the offence is dealt with administratively, the motorist concerned does not have the right to be presumed innocent. He or she is not an “accused person”. He or she is a participant, albeit an unwilling one, in an administrative process. This is according to the full court of the Pretoria High Court.
The amended AARTO process
The amended AARTO process comprises three steps, which in turn involve several sub-processes, depending on how you, as a motorist react. Throughout its processes the duty is on the motorist to act and failure to do so will result in consequences of varying severity.
These steps are:
- An infringement notice;
- A courtesy letter; and
- An enforcement order.
It should be noted that an “infringement penalty levy” (“IPL”) of R100 is payable on every infringement notice the RTIA “follows up by proper administrative processes”. The IPL must be paid in full and is not subject to any discount.
It is not clear whether this means that the IPL will only be payable after the infringement notice stage, when the RTIA issues a courtesy letter, or whether it will be payable when the RTIA becomes involved in other processes, like considering representations. It is also not clear whether it will be scrapped if a representation, appeal, or review is successful.
Service of documents
The AARTO Amendment Act provides for service of documents in person, electronically, or by post. It disposes of the need for so-called “registered mail” to be used to post infringement notices and other documents.
The definition of “electronic service” is both broad and vague. Essentially it encompasses any electronic process or data transmission, including but not limited to email, Facebook, Twitter and other social media.
The draft regulations to the AARTO Amendment Act allow issuing authorities up to 60 days to issue and serve an infringement notice. This means that it could take two months for you to become aware of an allegation of wrongdoing against you. In that time, you may have repeatedly erred.
In addition to the disposal of the requirement for so-called “registered mail” to be used, the AARTO Amendment Act also bars an alleged infringer from succeeding in making representation that one or more AARTO documents were not served on him or her. If such representation is successful the first time around, the authority that did not comply with the legislation that applies to it may re-issue the document in question.
This is despite what the former Public Protector, Advocate Thuli Madonsela ordered as part of the remedial action in paragraph 11.2.1 of her report entitled “A Matter of Interpretation“, which was ignored.
In July 2017, the new Public Protector, Advocate Busisiwe Mkhwebane wrote a letter to Japh Chuwe, the Registrar of the RTIA, saying:
“In light of all the above, I am pleased to inform you that all the remedial action outlined in the abovementioned report, have been fully implemented. We are accordingly closing the file”.
So much for the remedial action of the Public Protector being binding!
The infringement notice
An infringement notice is either issued and served on the driver at the roadside, at the time of the alleged violation or on the registered owner of a vehicle, after the fact. It constitutes the commencement of legal proceedings against the person cited in it.
Infringement notices are issued by “issuing authorities” like SANRAL, SAPS, Metro Police, and local and provincial traffic departments, to mention but a few. It is not their function to collect the monies associated with infringement notices and they have no mandate to force anyone to pay fines at a roadblock.
- If an infringement notice is issued and served at the time of the alleged violation, the person cited in it will obviously be aware of it because it will be handed to him or her by a traffic officer. The countdown to other processes starts immediately.
- If an infringement notice is issued after the fact, it must be delivered to the registered owner by post or electronically.
- If it is served by post, it must be addressed to the address nominated on eNaTIS by the registered owner and delivered by the SA Post Office.
- As previously mentioned, if it is served electronically, any electronic means may be used. This is because the definition of “electronic service” is extremely broad. It does not only include email.
- In both cases (electronic or postal), the infringement notice must be issued and served within 60 days of the alleged infringement. If it is not delivered before that time, the countdown to other processes automatically starts after 60 days from the alleged infringement.
- Also, in both cases, the infringement notice is deemed to have been served (received by its addressee) on the tenth day of position unless the contrary is proven.
An infringement notice sets out the details of the alleged infringement and provides the alleged infringer with various options which may be exercised within 32 days of the actual or presumed service of the infringement notice:
- Pay the penalty (fine) at the 50% discounted rate;
- Apply to pay in instalments, over a maximum term of six months and in so doing, to forfeit the discount;
- Make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement; or
- In the case of infringement notices issued to registered owners of vehicles, to nominate the driver if he or she was not the driver. Doing this should see the infringement notice being cancelled and a new infringement notice being issued to the actual driver.
Motorists can and are advised to check if they have any AARTO infringements at the RTMC’s AARTO website, remembering that the current process differs considerably from the amended process.
The courtesy letter
The function of the RTIA is to act as a debt collector for traffic fines and the fees it raises, together with considering things like written representations from motorists and administering the points demerit system.
If an alleged infringer fails to act within 32 days of the actual or presumed service of the infringement notice, the RTIA must issue a “courtesy letter”. This document removes the 50% discount and adds a R100 fee for the courtesy letter to the total payable. It also represents the first involvement of the RTIA in the process.
Once again, the alleged infringer is provided various options which may be exercised within 32 days of the actual or presumed service of the courtesy letter. These are:
- To pay the full penalty, together with the R100 for the courtesy letter and R100 for the IPL; or
- To make a written representation to the RTIA setting out why one should not be held liable for the alleged infringement.
- Notably absent from these options is the ability to nominate the driver or to apply to pay in instalments.
NOTE: Once a courtesy letter has been issued, the actual driver of a vehicle may not be identified and nominated. The requisite demerit points will be applied against the registered owner’s driving licence (natural persons) or licence disc (juristic entities).
The enforcement order
If an alleged infringer fails to act within 32 days of the actual or presumed service of the courtesy letter, the RTIA must issue an “enforcement order”. This document has the following effects:
- It applies the demerit points to the alleged infringer’s driving licence, operator card or vehicle licence disc. More on the points demerit system later.
- It also electronically blocks licensing transactions on eNaTIS, meaning that no driving licence, professional driving permit or vehicle licence disc may be issued.
The enforcement order attracts a further R100 fee which is added to the total payable. It may only be “complied with” by paying 100% of the penalty, together with R100 for the IPL, R100 for the courtesy letter and R100 for the enforcement order (R300 over and above the original fine amount).
The alleged infringer may apply to the RTIA for the enforcement order to be revoked, but only if he or she does so within 32 days of the actual or presumed service of the enforcement order.
Summary of the AARTO process
Making written representations
Written representations may be made to the RTIA, detailing why the alleged infringer should not be held liable for the alleged infringement. This may only be done using an AARTO 08 form. Doing anything else will result in the representation being ignored.
The form must detail all the reasons/defences one wishes to raise, and the form must be accurately completed. Failing to provide all the required information will result in the representation being summarily rejected.
- If it is successful, the alleged infringement will be cancelled.
- If it is unsuccessful, the alleged infringer has 32 days from the actual or presumed service to pay, or an enforcement order will be issued.
- No mention is made in the draft regulations of the IPL being cancelled if a representation is successful.
The AARTO Tribunal
The AARTO Amendment Act introduces a part-time Tribunal comprised of nine persons to deal with the affairs of approximately 13 million drivers plus almost 13 million vehicles (as of August 2020). Its function is to consider applications for appeal or review of the decision of a representations officer who rejects a written representation.
Any person who wishes to apply to the Tribunal for appeal or review must do so using the form AARTO 10 and must do so within 30 days of the decision of the representations officer.
Except in “exceptional circumstances”, the alleged infringer must stick to the contents of their original written representation when applying to the Tribunal. He or she may not introduce new evidence at that stage.
Although an alleged infringer who is not satisfied with the decision of the Tribunal may pursue the matter further, according to the draft regulations its decision is final. If an appeal or review before the Tribunal is unsuccessful, the RTIA must issue an enforcement order.
A call for nominations to the part-time Tribunal was made on 22 January 2021. The details thereof can be found here.
The Magistrates’ Court
If the alleged infringer is not satisfied with the decision of the Tribunal, he or she may approach the Magistrates’ Court with jurisdiction to appeal or review the decision of the Tribunal. According to the draft regulations, this must be done within 7 days of the Tribunal’s decision.
There is no mention in the draft regulations of the effects of the enforcement order being suspended if an alleged infringer approaches the Magistrates’ Court for appeal or review. This differs considerably with all other appeal processes in South Africa’s courts, where orders are suspended, pending the outcome of the appeal.
The draft regulations also regard an appeal to the Magistrates’ Court as being the end of the road for an aggrieved motorist. This too differs considerably from other legal matters which are subject to appeal to the High Court, the Supreme Court of Appeals and the Constitutional Court.
Nominating the driver
A vehicle owner may nominate the driver within 32 days of the actual or presumed service of an infringement notice. He or she may not do so after that time.
- A form AARTO 07 must be used to nominate the driver.
- A clear copy of the said driver’s driving licence card must be submitted together with the nomination form.
It is essential that the owner of a motor vehicle acquires and retains a clear copy of any third party’s driving licence card for purposes of nominating such driver if he or she allegedly violates the law.
Peculiarly, no provision is made to nominate the driver if the violation is categorised as a criminal offence. In such cases, the registered owner must wait for a criminal summons to be issued and served.
Failure to nominate the driver within the specified time frame will result in the demerit points being applied to the driving licence of the registered vehicle owner if he or she is a natural person, or the vehicle licence disc if the vehicle is owned by a juristic entity that is not an operator.
The points demerit system
The long-awaited part of the AARTO Act is the introduction of a points demerit system. All points demerit systems in the world have similar features, although the South African version differs inasmuch as it is subjected to administrative processes which do not involve the courts.
- Every driver, operator or juristic entity starts with zero points;
- Differing demerit points for each violation are prescribed in Schedule 3 to the AARTO regulations;
As infringements are incurred by drivers or vehicles, the demerit points are associated with that violation. They are applied when:
- The penalty (fine) is paid, whether at the discounted stage or not;
- When an enforcement order is issued; or
- A person who is charged with a crime (“offence”) is convicted in court.
The threshold of demerit points which may be incurred without consequence is 15 points.
- If the threshold is exceeded, the relevant driving licence card, operator card, vehicle licence disc or operating permit is suspended for three months for each demerit point by which the threshold is exceeded. e.g. If 19 demerit points are incurred, the said document will be suspended for a year.
- Driving or operating a vehicle during the prohibition period is a criminal offence, subject to a fine or imprisonment and a further six demerit points on conviction.
- No person, operator, or juristic person may apply for a driving licence, professional driving permit, motor vehicle licence disc, operator card or any other permit, card or licence disc issued in terms of road traffic legislation or transport legislation during the suspension period.
Once a driving licence card, operator card or vehicle licence disc has been suspended twice, again exceeding the threshold will result in it being cancelled.
- This means that, in the case of driving licenses, the person will have to start from scratch, with a learner’s licence if he or she wishes to drive again after the lapse of the prohibition period.
- In the case of operator cards and vehicle licence discs, the draft regulations do not make it clear how or if the relevant document can be reinstated.
Demerit points are applied differently, depending on whether the person is a natural person or a juristic entity, or is an operator:
- Demerit points are applied to the driving licenses of natural persons.
- Demerit points are applied to the operator cards of vehicles which are classified as operator class vehicles. In many instances, demerit points are incurred by both the driver and the operator. In others, they are incurred on the operator cards of juristic entities who fail to nominate the driver.
- Demerit points are applied to the licence discs of vehicles owned by juristic entities which are not operators, if the proxy for the juristic entity fails to nominate the driver within 32 days of the actual or presumed service of an infringement notice.
Demerit points are forgiven and diminished by one point every three months. This is regardless of whether the alleged infringer does or does not incur further infringements. No-one can accumulate a negative number of demerit points. Being a “good driver” is not rewarded. A law-abiding motorists’ “reward” is not to incur demerit points.
A few examples of fines and demerit points
Schedule 3 to the draft AARTO regulations contains over 2,600 separate charges for which a motorist or operator may be held to account. Below are just a few examples:
|Violation||Penalty||Demerit points (natural persons)||Demerit points (juristic entities)|
|Driving at 71-72 km/h in a 60 km/h zone||R400||-||1|
|Driving at 89-90 km/h in a 60 km/h zone||R3,400||5||5|
|Driving at more than 90 km/h in a 60 km/h zone||CRIMINAL OFFENCE||6||6|
|Failed to stop behind the line at a stop street||R1,500||2||2|
|Failed to proceed when a traffic light was green||R1,000||1||1|
|Skipped a red traffic light – motorcycle/light motor vehicle/bakkie, etc.||R1,500||2||2|
|Skipped a red traffic light – operator class vehicles||R2,000||3||3|
|Refused or failed to comply with a lawful order given by an authorised officer||CRIMINAL OFFENCE||6||6|
|Failed to carry a warning triangle (excl. motor car registered before 1 July 2006)||R1,000||-||-|
|Failed to display a current licence disc||R2,000||-||-|
|Failed to licence a vehicle||CRIMINAL OFFENCE||6||6|
|Driver did not carry driving licence card with him/her or produced an expired driving licence card||R2000||3||-|
|Driver is unlicensed to drive the class of vehicle he/she is driving||CRIMINAL OFFENCE||6||-|
|Employed or permitted another person to drive such vehicle while the said driver did not have a valid driving licence.||R3,500||-||-|
|Failed to pay ordinary or e-toll fee – motorcycle/light motor vehicle/bakkie, etc. – per toll plaza/gantry||R500||-||-|
|Failed to pay ordinary or e-toll fee – operator class vehicles – per toll plaza/gantry||R1,000||-||-|
|Reckless or negligent driving/driving under the influence of alcohol||CRIMINAL OFFENCE||6||N/A|
Checking other persons’ demerit points status
Only companies who employ persons to drive their vehicles may query the demerit points statuses of their employees. They must get the written permission of the said driver to do so and must also pay a fee to the RTIA for such queries.
People and companies who let any other person (not in the employ of their company) drive their vehicles may not query such drivers’ points demerit status, except by making a PAIA application.
Allowing a person who is not licensed to drive one’s vehicle is subject to a fine of R3,500.
An undefined “rehabilitation program” is catered for in the AARTO Amendment Act. It is exclusively available available to persons, operators, or juristic entities whose relevant document has already been cancelled. It is not available to anyone at any time before their document has been cancelled. There is no indication how much it will cost anyone.
The so-called “rehabilitation program” is not aimed at assisting errant motorists to avoid having their driving licenses suspended by correcting their behaviour. In fact, it is not clear what it is aimed at, apart from giving the appearance that the authorities care whether your driving licence (or other document) is suspended, or indeed cancelled.
Successful completion of the rehabilitation program will diminish the demerit points on the successful candidate’s document by four points. In other words, in the case of a driving licence, it will knock a year off the prohibition period within which that person may not apply for a learner’s licence to start their driving privileges from scratch.