Outa goes to court to stop Aarto

The Organisation Undoing Tax Abuse (Outa) has filed a high court application calling for the Aarto Act (Administrative Adjudication of Road Traffic Offences Act) to be declared unconstitutional.

This was after the national rollout of the bill, which includes the licence points demerit system, was postponed from its original June 2020 implementation date due to the outbreak of the coronavirus.

Outa's application was issued in the Pretoria high court.

The respondents are the minister of transport, the minister of co-operative governance & traditional affairs, the Road Traffic Infringement Authority (RTIA), and the RTIA’s Appeals Tribunal. The minister of transport and the RTIA have filed notices to oppose the application and they have until the end of September to file their opposing papers.

The Aarto act was passed in 1998 to create a single national system of road traffic regulation and enforcement through the judiciary. The Aaarto Amendment Act, passed in 2019 but not yet in operation, moves the enforcement of traffic laws to an administrative system. When the amendment comes into force, the Aarto system will be rolled out nationwide and the driver demerits points system will commence.

The Aarto Amendment Act was signed into law by the president and published in the Government Gazette in August 2019, but a date for it to come into effect must still be gazetted. In January, minister of transport Fikile Mbalula said the amendment would come into effect in June, but this was later delayed due to the effects of Covid-19.

“While Outa believes that measures to improve road safety and reduce fatalities are urgently needed, we believe that the Aarto Amendment Act will not achieve this,” says an Outa spokesperson.

“Aarto was rolled out in Gauteng 10 years ago and failed spectacularly. Statistics do not support the claim that it will lead to a reduction in fatalities on roads.”

The application is supported by an affidavit by advocate Stefanie Fick, Outa's director of the accountability division.

The application calls for the court to declare both the main act and the amendment unconstitutional. This, says Outa, is because this legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the constitution.

“These constitutional inconsistencies of the Aarto Act and the Amendment Act lie at the very core of both Acts and are not capable of severance without negating the fundamental purpose of the two Acts,” says Fick in her affidavit.

If the court finds that the law is not inconsistent with the constitution, then Outa further opposes Section 17 of the Amendment Act. This removes the requirement that service of notices and related documents must be done personally or by registered mail, instead allowing the uses of e-mail, SMS or voice message.

“Given the serious consequences that may follow an infringement, such service is manifestly inadequate,” says Fick.

SA records about 14,000 road deaths a year and Aarto was seen by the government as a way to promote responsible driving behaviour through the creation of a demerit system, which introduces meaningful consequences for reckless, negligent and inconsiderate conduct.

The demerit system would penalise offenders. Once the system is in place, drivers will start with 0 points and will be allowed to drive until they reach a maximum of 12 points.

Depending on the severity of the offence, one to six points are allocated for offences. If a driver collects more than 12 points, it will result in the suspension of the driving licence. Three suspensions will result in its cancellation, with the driver having to redo their driving test.

Outa has been a staunch opponent of the bill, saying it would not improve road safety, is logistically cumbersome to the point of being potentially unconstitutional, and that it paves the way for corruption.

Outa also said the new act would be used to force Gauteng motorists to pay e-tolls, by making it an offence to ignore road signs which could include those listing e-toll charges.

“Outa believes that traffic fatalities are largely due to poor enforcement of traffic laws, a lack of traffic infringement management and a variety of problems in the management of vehicle and driver licensing. Aarto is not designed to address these problems,” said the tax abuse organisation.

The Automobile Association (AA) has also slammed the bill, saying its provisions around demerit points appear to be geared more towards revenue collection than road safety.