Constitutionality Challenge

A Full Court of the North Gauteng (Pretoria) High Court is to preside constitutional and legal issues relating to AARTO Act, together with certain other provisions of South African road traffic legislation and its enforcement – commencing on 31 August 2020, for five days up to and including 4 September 2020.

For more than 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 and governmental entities 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.

Because of the delays occasioned by repeated requests by the Respondents for more time to file affidavits and affidavits, it is likely that the matter will not be finalised by 1 June 2020, when the national implementation of the AARTO Act is purported to be commencing.

Consequently an interdict fund has now been established and is being managed by an independent NPO. Should any motorist who shares Dembovsky’s concerns wish to assist him in funding interdicting the AARTO Amendment Act, they may do so by making contributions to:

Dedicated account

Bank: FNB
Account number: 62841543847
Branch code: 250655
Account holder: DearSA NPC
Reference: [anything you wish]

All contributions will be used solely for the purpose of interdicting the national implementation of the AARTO Amendment Act, which is a separate matter to Dembovsky’s main matter. If there are any surplus funds, these will be donated to well deserving charities in the sphere of road safety and crime prevention.

National Press Club Briefing – 4 February 2020

 

Howard Dembovsky, who launched a High Court bid challenging the constitutionality of certain foundational provisions of the AARTO Act in April 2018, briefed members of the media and the National Press Club about the current status quo of the case. According to Dembovsky the amended AARTO Act, does not cure his concerns and it is set to be implemented countrywide from June 1.

Posted by National Press Club on Tuesday, 4 February 2020