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By Roy Cokayne

Moneyweb: Freelance journalist

Like it or not, demerit points are coming

ConCourt says Aarto Act ‘is constitutional and valid’, overruling earlier high court judgment.

Demerit points for road traffic infringements are set to become a major feature in the lives of South African motorists.

This follows the Constitutional Court (ConCourt) on Wednesday declaring the Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act constitutional and valid.

Government will now ‘move with speed’

Minister of Transport Sindisiwe Chikunga welcomed the judgment, adding it will remove the uncertainty created by this legal challenge.

ALSO READ: Outa dealt a blow as ConCourt refuses to declare Aarto Act unconstitutional

Chikunga said the implementation of this law across the country has been pending for 25 years, with pilots in place in Johannesburg and Pretoria.

She said the judgment affirms the department’s long-held view that the Aarto Act is a necessary law and an important cog in its road traffic law enforcement interventions aimed at arresting the carnage on the country’s roads and altering driver behaviour.

“With this judgment having cleared the path for the implementation of Aarto, we will move with speed to roll out its implementation across the country without delay.

“In the coming days, we will ensure that the Road Traffic Infringement Agency (RTIA) mobilises the necessary capacity and proceeds with its rollout plans across all municipalities in the country.

“We will equally move with speed with the implementation of the points demerit system, an important cornerstone of the Aarto Act intended to drive motorist behaviour on our roads.

“We are also ready to finalise our recommendations to the President for the appointment of the [Appeals] Tribunal and the proclamation of the Aarto Act implementation as well as the Aarto Amendment Act,” she said.

The commencement date of the Aarto Amendment Act has not yet been proclaimed.

Aarto ‘won’t deliver on its intended outcomes’

Outa executive director Advocate Stefanie Fick said Outa is disappointed with the ConCourt decision and believes the government will struggle to implement the Aarto Act because of the ‘red tape’ and potential for corruption.

“Outa believes that measures to improve road safety and reduce fatalities are urgently needed. “However, we don’t believe the Aarto Acts will achieve this. It’s just not practically possible,” she said.

Fick said Outa believes the practical challenges of Aarto are largely due to poor enforcement, a lack of administrative discipline in regard to traffic infringement management and a variety of problems in the management of vehicle and driver licensing.

“Merely legislating policy doesn’t make it rational or workable. Governments often suffer from the false belief that if the laws and regulations are in place, the people will simply comply,” she said.

“The sad reality is that government begins to suffer from a crisis of legitimacy when it cannot exercise its power over people by effectively enforcing its legislation and policies.”

The Automobile Association (AA) said it respects the ConCourt’s decision but remains concerned that Aarto will not deliver on its intended outcomes of improving road safety and reducing road carnage on South Africa’s roads.

“We stand by our previous views that the Aarto legislation is geared towards revenue collection and not on promoting safer roads. There is no evidence that the Aarto pilot project saved a single life.”

National regulations

Chief Justice Zondo said in the judgment that the Aarto Act, like the National Road Traffic Act, regulates matters that must appropriately be regulated nationally.

Zondo said a person licensed to drive a vehicle may drive the vehicle anywhere in South Africa and on any type of road.

“Legislative provisions aimed at encouraging drivers to drive safely, and penalising them when they do not, is something which is eminently suitable for national regulation.

“It would lead to chaos if each province or each municipality had its own rules about safety on the road … This would not prevent a province or municipality from passing an ordinance or by‑law to create additional rules or offences to cater for regional or municipal concerns,” he said.

Zondo ruled the Aarto Act falls within the concurrent legislative competence of the national and provincial spheres of government in Part A of Schedule 4 to the Constitution.

He said while the national and provincial spheres of government are given the competence to make laws concerning road traffic regulation, it is quite clear the local sphere of government is not given any competence to make laws that relate to road traffic regulation, which are matters that need to be dealt with nationally and interprovincially.

Zondo added that the adjudication of, and penalisation for the breach or contravention of road traffic laws, are national and interprovincial matters.

He said persons may violate traffic laws in any number of municipalities, or provinces, even on the same day.

“The notion that they cannot be subject to a national system of prosecution and adjudication runs contrary not only to common practice but also to sensibility and effectiveness.

“The system of prosecuting traffic violations, like the system of issuing and revoking driving licences in the Republic, is manifestly an interprovincial issue.

“It is concerned with ensuring that people are incentivised to drive safely and that serial incidents of dangerous driving results in removal from the roads,” he said.


Zondo further ruled that Section 30 of the Aarto Act, once amended by Section 17 of the Aarto Amendment Act 4, will not be inconsistent with the Constitution to the extent that it will permit the service of notices and documents by modes of service other than personal service or service by registered mail.

Outa contends that service of such documents by any mode other than personal service and registered mail will lead to many alleged infringers not receiving these documents.

And yet, the RTIA will go ahead and take steps in terms of the Aarto Act, which will lead to the disqualification of alleged infringers from driving or suspension or cancellation of their driving licences in circumstances where they may have had a defence against such allegations of infringements but did not raise it because they did not receive such notices or documents.

The organisation added that once those consequences have occurred, the Aarto Act burdens the alleged infringer with the responsibility of having to get their disqualification or suspension or cancellation of their driving licence reversed, which may be difficult for many alleged infringers.

Zondo stressed that it will always be necessary for RTIA to show that the alleged infringer probably received the notice or document irrespective of the method of service it used to send the notice or document to the alleged infringer.

“It would be important that the efforts of the RTIA in bringing the notice or document to the attention of the alleged infringer be carefully scrutinised before any of the rights of alleged infringers may be adversely affected,” he said.

This article originally appeared on Moneyweb and was republished with permission.
Read the original article here.

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