Meeting constitutional muster does not make AARTO workable…
The fact that a law or regulation meets constitutional muster does not guarantee that it is workable, nor ensure that the many citizens subject to that law will enjoy fair outcomes. Case in point, the 12 July 2023 Constitutional Court of South Africa (the Court) judgement handed down in a matter between the Organisation Undoing Tax Abuse (OUTA) and the Minister of Transport and four other public sector respondents.
This law is not inconsistent, invalid
In a nutshell, the court set aside a previous High Court ruling that the Administrative Adjudication of Road Traffic Offences (AARTO) and the Administrative Adjudication of Road Traffic Offences Amendment Acts “were inconsistent with the Constitution and [therefore] invalid”. PS, for the uninformed, the AARTO Act paves the way for national enforcement agencies to introduce fines and a penalty point system for infringements of South Africa’s traffic laws. Commenting on the ruling, OUTA said it had been vocally opposed to the legislation for years, with one of its many complaints being that the intervention would do little to address the country’s epidemic of road traffic fatalities and injuries.
The Court disagreed with OUTA’s position, which was that the legislation unlawfully intruded upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution and that it would prevent local and provincial governments from regulating their own affairs. “We are disappointed with the Court’s decision but abide by the apex court’s ruling,” said Advocate Stefanie Fick, OUTA Executive Director, before restating concerns over the practicality of the legislation. In fact, the association warned that the AARTO legislation would lead to “troublesome and complex issues for most motorists and motor vehicle owners” rather than enhancing road safety.
No worries, your penalty is in the mail
This writer wondered how anyone in government could even consider backing a driving or vehicle licence penalty system that was underpinned by notifications that would most likely be ‘served’ on motorists and vehicle owners via the country’s ailing postal services.
In the same week as the AARTO judgement, local citizens were dished up news that the South African Post Office was going into business rescue. Instead of timeously delivering letters and parcels, this disorganised state-owned enterprise (SOE) has operated for decades as little more than a tax sponge, soaking up billions in bailouts. Commenting on the business rescue announcement, the Democratic Alliance (DA) revealed this SOE’s total ‘bailout’ price tag at north of ZAR14 billion: that’s R7.9 billion between 2014 and 2019, plus ZAR2.4 billion announced in the February 2023 National Budget, plus another ZAR3.8 billion or so for the business rescue (sic).
But then, government has long demonstrated that common-sense and practicality are superfluous in the realms of autocrats with myriad God complexes. Too harsh? This writer will leave it to you, dear reader, to decide … and offers the following to assist. Because instead of stepping back and weighing up the judgement, the Minister of Transport almost immediately responded that government “will move quickly to roll out the AARTO implementation nationwide, without delay”. The minister referred to a 25-year process and ‘staged roll-outs’ in Johannesburg and Tshwane to support that national law enforcement was ready to go ahead with AARTO, though no mention was made of the outcomes of the various pilots.
Was this a failed ‘Hail Mary’ intervention
For some history, AARTO was passed by Parliament in 1998, with countless amendments over the next two decades. The High Court challenge mentioned earlier in this piece was not about the legislation per se but rather about the level of government that should be responsible for law making. There were concerns that AARTO would wrest power from the provinces insofar as road traffic regulation. And one might be forgiven for concluding that OUTA challenged the constitutionality of the legislation as some kind of ‘Hail Mary’ to save South Africans from another piece of unworkable law.
OUTA does not believe that AARTO will be the silver bullet guaranteeing the implementation of the National Road Safety Strategy and the achievement of the targets of the UN Decade of Action for Road Safety. Instead, Fick suggested that “the AARTO Amendment Act, with its higher penalties, [introduction of] tedious and expensive procedures to be followed by the public, and total lack of prescription on visible policing will have little or no effect on improving road safety”. In what has become a common counter to new local laws, the argument appears to be that the administration and enforcement of traffic law, and the administration of driving and vehicle licensing, can be tackled under existing law.
Under AARTO, you can expect a three-step approach to any of your motoring transgressions. These steps, per aarto.co.za, include an infringement notice; a courtesy letter; and an enforcement order. Unfortunately, in keeping with recent traffic-related administrative improvements (sic) all of this comes at an additional tax, over and above the fuel levies and general taxes road users already pay. On this website you learn that “an infringement penalty levy of R100 is payable on every infringement notice the Road Traffic Infringement Agency (RTIA) follows up by proper administrative processes”. In simple English, it appears you will get a guaranteed a non-discountable admin penalty in addition to your fine and demerit points.
2569 Charge codes to trawl through
AARTO also includes a long list of transgressions alongside the fines and penalties that they attract. PS, this writer was horrified to discover no fewer than 2659 charge codes, per schedule three of the AARTO regulations. Motorists and vehicle owners who want to be ‘in the know’ will have to spend hours trawling through infringements, which are dealt with by AARTO; and criminal offences, which are dealt with in terms of the Criminal Procedure Act. Any AARTO infringement come with a fine and / or demerit points on your driving licence … with the current system holding that your licence be suspended when you exceed a points threshold, currently 12 points. And of course, driving whilst your driving licence is suspended is a criminal offence.
Public concerns over the Act include the punitive nature of some of the penalties; the apparent inconsistency of proposed punishments based on the severity of transgression; the absolute shambles that the country’s driving and vehicle licensing systems are currently in; and the serious possibility that notifications of AARTO transgressions will not reach drivers in time. Given the failings of the Post Office, drivers often only find out about camera fines when they rock up at the licensing office to renew their vehicle licences, for example. Ah well: it is common knowledge that KISS, TCF and plain language are there for businesses and individuals to comply with, not governments and lawmakers.
Best check your PO Box for fines and demerits
A final point, before this writer rushes out to check his PO Box for any AARTO infringement notices, is that the country’s non-life insurers have been fairly clear that having an accident while driving without a driving licence could place you in breach of the terms and conditions of your short-term insurance contract. So, do yourself a favour: keep your driving record clean, and if you do end up having your licence suspended, you are best advised to use Uber, public transport or ‘phone a friend’ rather than driving your own vehicle illegally, and potentially uninsured!
To close, we reiterate OUTA’s view that constitutionality is not the only consideration in treating citizens fairly. “Merely legislating policy does not make it rational or workable,” concluded Fick. “Governments often suffer from the false belief that if the laws and regulations are in place, the people will simply comply … [but] irrational and or impractical laws, and a lack of transparency, [will lead] to a pushback from society, making systems ungovernable”. Need an example, just Google e-Tolls.
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