The Administrative Adjudication of Road Traffic Offence (Aarto) Amendment Bill is unconstitutional and will inevitably be challenged once signed into law, Justice Project South Africa chairperson Howard Dembovsky told a National Press Club briefing on Tuesday.

He stated that, in addition to being unconstitutional, the Bill is, “so broken it cannot be fixed.”

He noted that one of the major misconceptions surrounding the Bill is that it is focused on introducing a points demerit system for drivers. Dembovsky explains that this is only a small portion of the Bill, and that, “if South Africa was serious about it,” the demerit system could have been achieved decades ago by amending existing legislation.

“The real purpose of the Aarto Bill is to migrate the prosecution of road traffic offences . . . 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, funded almost entirely by traffic fines,” Dembovsky stated.

One of the major flaws of the Aarto Bill is that it presupposes guilt and that alleged infringers will “no longer be allowed to elect to be tried in court.”

A written representation may be made to the Road Traffic Infringement Agency (RITA), which receives “95% of its income from traffic fines,” Dembovsky explains.

If the representation is unsuccessful, the alleged infringer may appeal to a yet-to-be-established tribunal but only if the infringer has been advised by a representations officer to do so, and only if such appeal is lodged within 30 days and is accompanied by the payment of an up-front fee.

Dembovsky said the Bill’s implicit desire to subvert citizens’ constitutional rights resulted from the Tshwane and Johannesburg pilot phase, which “exposed” the fact that the system was expensive, bothersome and enabled legal redress. As such, “legislators set about making amendments to dispose of what were seen as being barriers to revenue generation,” Dembovsky stated.

He noted that one of the other flaws in terms of the Bill’s constitutionality is the fact that there has been inadequate public consultation.

The Aarto Amendment Bill 2015 was passed by the National Assembly on September 5, 2017. It is awaiting approval by the National Council of Provinces, following a public consultation process, which Dembovsky has deemed “insufficient”.

Of the nine provinces, only Limpopo and Mpumalanga have completed public hearings. The Western Cape and the Free State are holding hearings during the course of this week. The remaining five provinces have yet to schedule hearings or have failed to notify the public of the hearings’ commencement.

Dembovsky stressed that the public consultation process has been tainted by insufficient notice and a dearth of hearings, adding, “one public hearing in Nelspruit for the entire Mpumalanga province can hardly be considered sufficient.”

OTHER PITFALLS
Other areas of concern for Dembovsky include the fact that permits and operating licences issued “in accordance with any road transport legislation” may be suspended or cancelled as part of the points demerit system, alongside driving licences and operator cards.

Additionally, the ‘Electronic Service’ – RTIA sending notifications by email – 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 this electronic means of service, “which is unprecedented in terms of legal practice,” Dembovsky scoffed.

This means that RTIA could email an infringement notice to an outdated or incorrect address, but proceed under the assumption that the email was received, culminating in the issuing of an enforcement order.

Automobile Association spokesperson Layton Beard, meanwhile, pointed out that, in terms of the Aarto Bill, “if you are a fleet manager of 100 vehicles and they all incurred infringements, and you don’t nominate the drivers, all of those infringements will be in your name.” 

Further, the manager or company proxy would have to nominate the vehicle’s driver within 32 days of the (presumed) service of an infringement notice.

“Nominating the driver after 32 days is not allowed . . . this applies to all registered vehicle owners, regardless of whether they are natural or juristic persons,” Dembovsky added.

Beard stressed that the Bill has little to do with road safety, as demonstrated by the lack of any “statistically relevant” reduction in road fatalities in Johannesburg and Tshwane, where the system has been in effect for years.

Dembovsky highlighted this point by noting that, “the current fine for running a red traffic light is a R500 and one demerit point. The fine for not licensing your vehicle is R1 000 and three demerit points . . . this whole thing is predicated on one thing and one thing only . . . to make [a profit].”

Beard added that RTIA as an institution lacks credibility, and that the Bill has been drafted in a way that prohibits engagement from laypeople – presumably by design.

“Once the Aarto Amendment Bill is signed into law, it will be too late to do anything about it without entering into costly litigation,” Dembovsky warned, adding that it would be rolled out nationally in a relatively short timeframe.