Constitutionality Challenge

For nearly a decade now, Howard Dembovsky and Justice Project South Africa have been trying to address the serious issues which underpin the AARTO Act, adopting an approach of quiet (and not so quiet) diplomacy in the hope that the problematic issues and provisions could be edited out of the Act and its regulations, and one-on-one interactions with top executives in the RTIA could address areas of abuse, without getting into a fight.

After initially meeting with limited successes, this approach eventually evolved into a toxic relationship where executives of the RTIA, who had come to realise that acting morally and ethically carried financial implications with it, dug in their heels.

Although it does not say so directly, at its core, the AARTO Act is premised on the principle that if a motorist is issued a fine for any road traffic infringement, that motorist is guilty unless he or she proves him or herself to not be guilty. This principle goes directly against the grain of the Constitution of the Republic of South Africa, 1996 as well as every legal principle which is held dear where innocence must be presumed ahead of a conviction arising from a fair trial, and lines the AARTO Act up squarely within the sights of a constitutional challenge.

The fact that, up until now, the AARTO Act has managed to fly under the legal radar and avoid being called to constitutional muster is little short of a miracle. Challenges brought against the manner in which some of its provisions are applied have met with limited success, and even where successes have resulted, the effect of judgments such as the Audi Johannesburg and Fines 4 U versus the deputy registrar of the RTIA and others matter haven’t really assisted a wide spectrum of  individuals and companies. There is nothing unusual or untoward about this fact. When practical implementation issues are challenged, all the court may do is to make findings on such practical implementations and within the narrow focus of the applicant.

This challenge is entirely different to any and all others which have preceded it insofar as it is shooting straight for the heart of what gives rise to the practical abuses under the AARTO scheme – the underlying provisions of law. After all, if it is found (as it expected to be) that the issuing of an enforcement order is unconstitutional to start with, then it follows that the Registrar will no longer have any the ability to abuse the processes associated with issuing one.

Howard Dembovsky’s founding affidavit lays bare the exact problems which exist with the AARTO Act, as well as some of the historical practices which have led us to this point. Although he has lodged this litigation in his personal capacity and in order to directly address the manner in which his individual constitutional rights are being violated, a win for him will be a win for every single motorist in South Africa. This is because the court cannot and will not protect the rights of one individual, whilst simultaneously allowing the rights of others to be violated.

Please see the current status of this matter here.

If you, like the Registrar of the RTIA think that there is anything untoward about publishing pleadings filed in Court papers in motion applications, kindly refer to paragraph 47 in the Supreme Court of Appeal judgement in the matter between the City of Cape Town v South African National Roads Authority Limited and Others (20786/2014) [2015] ZASCA 58; 2015 (3) SA 386 (SCA); [2015] 2 All SA 517 (SCA); 2015 (5) BCLR 560 (SCA) (30 March 2015), or to this article.