Briefing for the National Press Club – Centurion – Tuesday 27 February 2018
Important amendments to the AARTO Act contained in the AARTO Amendment Bill
A remarkably high number of people appear to be of the view that the Administrative Adjudication of Road Traffic Offences (AARTO) Act and its Amendment Bill represents an effort on the part of government to introduce a points-demerit system, and little more. This is simply not true.
While the AARTO Act does bring a points-demerit system with it, there is a lot more to it than that, and in fact, the points-demerit system represents but a small part of the AARTO Act’s mechanisms and real purpose. Indeed, had there been any desire to do so, introducing a points-demerit system in South Africa could easily have easily been achieved decades ago – by simply making a few minor amendments to road traffic legislation.
The real purpose of the AARTO Act is to migrate the prosecution of road traffic offences for which an admission of guilt fine may be payed from the Criminal Procedure Act and the judicial authority of the courts, to an administrative, process driven scheme, orchestrated by a far from independent State Owned Enterprise which is funded almost entirely by traffic fines and the fees raised on them.
The AARTO Act has also brought with it the concept of an alleged infringer being guilty until they prove themselves innocent.
When the, almost a decade long, so-called “pilot phase” of the AARTO Act in Tshwane and Johannesburg exposed the fact that the system was somewhat expensive and bothersome to run, and allowed alleged infringers to exercise their constitutional right to a fair trial should they not wish to submit to the administrative processes, legislators set about making amendments to dispose of what were seen as being barriers to revenue generation. This process started in 2013, with the AARTO Amendment Bill 2013.
The result thereof was the AARTO Amendment Bill, 2015 which was assented to by the National Assembly on 5 September 2017. Here are some of its provisions:
- No longer will it only be driving licences and operator cards which may be suspended or cancelled by the points-demerit system. Permits and operating licences issued in accordance with any road transport legislation will also be included.
- “Electronic Service” will now form part of the legal means of service of infringement notices and other processes under the AARTO Act. The presumption of service has also been extended to these electronic means of service.
- Remuneration and allowances paid by the RTIA to its employees will no longer be subject to the oversight of the Minister of Finance. The RTIA Board will only need the approval of the Minister of Transport.
- There will no longer be a legal distinction between a “minor infringement” and a “major infringement”. Charges in Schedule 3 of the AARTO Regulations, and the actions which may be taken with respect to them will be subject to a classification of “infringement” or “offence” only.
- Alleged infringers will no longer be allowed to elect to be tried in court. A written representation may be made to the RTIA, If unsuccessful, the alleged infringer may appeal to the Tribunal, if advised by a representations officer to do so, but only if such appeal is lodged within 30 days and is accompanied by the payment of an up-front fee, yet to be prescribed by the Minister. If the Tribunal subsequently rejects the appeal, the alleged infringer must approach the High Court for relief.
- If a representation is successful on the grounds of the authorities not having followed the prescribed procedures, that success will be hollow since a replacement infringement notice may then be reissued, provided that it is served within 6 months of the original alleged infringement.
- The reverse onus on the alleged infringer having to prove themselves innocent or otherwise take action, will be strengthened. If an alleged infringer fails to take action, the so-called “adjudication procedure” will proceed full steam ahead, culminating in the issuing of an enforcement order.
- When an enforcement order is issued, not only will it block the issuing of a driving licence, professional driving permit and vehicle licence disc, but it will also block the issuing of any permit or licence issued in terms of any road traffic legislation or transport legislation. As before, the issuing of an enforcement order will also impose the applicable demerit points to the driving licence or operator card of the alleged (now convicted) infringer, except that such demerit points will also apply to any permit or licence issued in terms of any road traffic legislation or transport legislation.
- Whereas proxies for juristic persons who are not operators were previously exempt from having demerit points applied against their driving licences with respect to infringements committed by other persons driving their vehicles, demerit points will now be applied against the driving licences of juristic persons who are not operators, should such proxy fail to nominate the driver within 32 days of the [presumed] service of an infringement notice. Nominating the driver after 32 days is not allowed and this applies to all registered vehicle owners, regardless of whether they are natural or juristic persons.
- The grossly unconstitutional and otherwise illegal warrant of execution is repealed.
- Section 22 of the AARTO Act, which deals with the trial and wherein subsection (4) previously held that “Despite any other law, an infringer who has been dealt with by means of administrative procedures in terms of this Chapter, does not incur previous convictions and may not be prosecuted again on the same facts”, is repealed.
- The concept of a “habitual infringer” is introduced and is defined as a person whose driving licence has already been suspended twice. At that stage only, will such a person become eligible for a “rehabilitation programme” which is yet to be defined and explained, in order to avoid having his or her driving licence cancelled.
- Any fine imposed as part of a sentence handed down by a court with respect to a conviction in terms of an offence must, despite any other laws, be disbursed as prescribed by the AARTO Regulations. This means that the RTIA will get a share of the penalties imposed by courts for serious road traffic offences, if it is so prescribed in the regulations.
- The name of the Road Traffic Infringement Agency is changed to the Road Traffic Infringement Authority.
- The name of the ‘‘national contraventions register’’ is changed to the ‘‘National Road Traffic Offences Register”.
Although the publicity surrounding them has been low, public hearings are currently underway in each of the provinces. Limpopo and Mpumalanga have already held their public hearings, whilst the Western Cape and Free State are currently holding public hearings. We are not aware of any other public hearings schedules in the other five provinces at this stage.
Anyone who holds a driving licence or is the registered owner of a motor vehicle should take the time to read and understand the provisions of the AARTO Amendment Bill and the underlying AARTO Act and to participate in these hearings in order to have their voices heard. Even if you consider yourself to be a “law abiding motorist”, you must understand that the chances of the AARTO Act impacting on your life are high.
Once the AARTO Amendment Bill is signed into law, it will be too late to do anything about it without entering into costly litigation and the AARTO Act will be rolled out nationally in a relatively short timeframe.
The AARTO Amendment Bill, 2015 appears below:Administrative Adjudication of Road Traffic Offences Amendment Bill B38B-2015