Unfortunately, and almost certainly deliberately, the AARTO Act is not the easiest thing for the lay person to understand. It differs completely from the Criminal Procedure Act which is used to prosecute road traffic offences everywhere else in South Africa – except in Tshwane and Johannesburg where the AARTO Act applies.
Below is an outline of how the AARTO Act works:
NOTE: Provisions of the AARTO Act being challenged by Dembovsky’s litigation are marked with a double arrow like this: ».
The role players in the AARTO Act
People and entities who allegedly violate road traffic laws classified as “infringements” are called “infringers”.
“Issuing authorities” are traffic/metro police departments run by national, provincial and local authorities. The South African Police Service (SAPS) is also an issuing authority.
The Road Traffic Infringement Agency (RTIA)
The Road Traffic Infringement Agency, to be renamed the Road Traffic Infringement Authority by the AARTO Amendment Act, (RTIA) was created by Section 3 of the AARTO Act on 1 July 2007. It’s functions are to act as a debt collector, so-called “independent arbiter” between alleged infringers and issuing authorities, and to administer the points-demerit system when it comes into force.
It is almost solely funded by traffic fines, together with the fees it raises on them.
To learn more about the RTIA, click here.
The AARTO Tribunal – (not yet applicable)
A part time Tribunal, comprising nine persons, is to be established by the AARTO Amendment Act. Its proposed function is to preside over appeals and reviews in respect of representations rejected by so-called “representations officers” in the employ of the RTIA.
How it is going to be funded is not provided for in the AARTO Amendment Act, however, Section 29B(2) thereof provides that an alleged infringer must pay a fee to be prescribed by the Minister of Transport, to lodge an appeal or review with the Tribunal.
Classification of “infringements” and “offences”
Road Traffic offences are categorised by Schedule 3 to the AARTO Act as “infringements” and “offences”.
- Infringements are dealt with administratively – by the AARTO Act.
- Offences are still prosecuted in terms of the Criminal Procedure Act.
- The difference between an “infringement” and an “offence” is that if a person is convicted of an “infringement”, they will not incur a criminal record. A person convicted of an “offence” will.
Traffic fines issued in terms of the AARTO Act
Where a person or entity stands accused of an infringement, a document called an “infringement notice” is issued. It makes the allegation and entices payment by offering a 50% discount on the penalty. An alleged infringer has 32 days from the service (or presumed service) of an infringement notice to act.
Unlike is the case with the Criminal Procedure Act, no summons is catered for in the AARTO Act and your constitutional right to a trial is not a right; it is currently something you have to elect to be afforded if you stand accused of an infringement. This is set to change if/when the AARTO Amendment Act is proclaimed to be in force. At that time, no-one will be entitled to a trial before an ordinary Court – even if they protest their innocence.
» Presumption of guilt
At its foundation, the AARTO Act presumes that a person or entity that is issued with a traffic fine is guilty. The onus of proving one’s innocence is placed on that person or entity. This, clearly unconstitutional presumption forms part of the constitutionality challenge brought by Howard Dembovsky.
It also places the onus on that person or entity to take action, failing which the so-called “adjudication procedure” defined in Chapter III of the AARTO Act kicks in.
» The so-called “adjudication procedure”
The so-called “adjudication procedure” outlined below is what is legislated. In practice however, the RTIA does its own thing and selectively applies its provisions. This is not allowed by the AARTO Act or the Constitution of the Republic of South Africa, but the RTIA apparently does not care what is and isn’t allowed by law.
The infringement notice
A traffic fine issued in terms of the AARTO Act starts off with an infringement notice. The alleged infringer then has 32 days to:
- Pay the penalty – at 50% discount;
- »Make representation to the RTIA;
- »Apply to pay in instalments;
- Elect to be tried in Court; or
- Nominate the driver if the registered owner was not the driver at the time of the alleged infringement.
The “courtesy” letter
If the alleged infringer fails to act on an infringement notice within 32 days of its service or presumed service, a courtesy letter is issued. The discount is forfeited and an additional fee (currently R60) is added to the penalty. The alleged infringer then has 32 days to:
- Pay 100% of the penalty, plus the fee for the courtesy letter;
- »Make representation to the RTIA; or
- Elect to be tried in Court.
»It is important to note that the registered owner may not nominate the driver at this stage.
»The enforcement order
If the alleged infringer fails to act on a courtesy letter within 32 days of its service or presumed service, an enforcement order is issued. an additional fee (currently R60) is added to the penalty and:
- »The demerit points are applied to the alleged infringer’s driving licence or operator card;
- »No driving licence may be issued;
- »No professional driving permit may be issued; and
- »No licence disc may be issued.
All of this happens in the complete absence of a trial, unless the alleged infringer has elected to be tried in Court.
The alleged infringer then has 32 days to:
- »Pay 100% of the penalty, plus the fees for the courtesy letter and enforcement order; or
- »Apply to the Registrar of the RTIA to have the enforcement order revoked.
»The warrant of execution
If an alleged infringer fails to act on an enforcement order, the Registrar of the RTIA may, if he or she wishes to do so, issue a warrant of execution. Such warrant authorises the Sheriff to:
- »Seize movable property to the value of the penalty and its fees, together with his or her fees;
- »Seize the driving licence card of the alleged infringer;
- »Seize and/or deface all vehicle licence discs belonging to the alleged infringer; and
- »”Disable” the alleged infringer’s vehicle.
»Once again, the Registrar may issue a warrant of execution in the complete absence of any trial, and at his or her discretion.
» Presumption of service
The AARTO Act requires that where any document is required to be served in terms of its provisions, it must be served personally, or by so-called “registered mail”. The AARTO Amendment Act intends to also allow “electronic service”, which encompasses a broad range of electronic facilities.
Whether such document is received by the intended addressee or not is of no interest to the authority that posted it. Instead, Section 30(2) of the AARTO Act provides that such document is “regarded” as having been served on the tenth day after posting. It does however contain a proviso that an alleged infringer may adduce evidence (which may be in the form of an affidavit) that the document was not served. That’s all well and good, but the RTIA regularly ignores such affidavits.