The highest court in the land was this week asked to decide the future of Aarto — the much-anticipated legislation laying down the penalties for traffic violations, a demerit system aimed at stripping repeat offenders of their licences and legalising fines by email.
The Constitutional Court will decide on a Pretoria high court ruling on a case brought against the government by civil activist group Organisation Undoing Tax Abuse (Outa). The high court found Aarto to be unconstitutional and invalid and ordered that it be scrapped in its entirety.
Now, on Tuesday, three parties argue for the high court decision to be declared an error, while Outa and the City of Cape Town will ask for Aarto to be thrown out. Whichever way the court decides, it will affect every motorist and pedestrian and determine how traffic violations throughout the country are handled.
What is Aarto?
The Administrative Adjudication of Road Traffic Offences Act of 1998 (the Aarto Act) sets up a single national system of road traffic regulation, to hold motorists to account for traffic violations.
Aarto differs entirely from the Criminal Procedure Act which has been and still is used to prosecute road traffic offences everywhere else in South Africa. Traffic fines issued under Aarto offer the infringer a 50% discount if they pay within 32 days and even those protesting innocence are not entitled to a trial before court. Fines issued under the Criminal Procedures Act do cater for a summons.
Those who fail to pay Aarto fines are then processed into an automated adjudication procedure. This involves the issuing of a “courtesy letter” demanding the full undiscounted amount plus R60 for the issuing of the letter.
If this is again ignored, an enforcement order is issued in which demerit points are linked to the driver’s licence, the infringer is barred from renewing their licence, professional driver's permit or licence disc and ordered to pay 100% of the penalty plus fees for the courtesy letter and enforcement order. If they disagree, they may apply to the Road Traffic infringement Agency (RTIA) appeals tribunal to have the enforcement revoked.
Aarto made it into the news in 2019 when the act was amended. Big announcements were made by the RTIA and the transport ministry, saying that the primary goal of the Aarto Act was to improve road safety. However, critics pointed out that in reality there was no improvement in road carnage and Aarto’s main function appeared to be the expedition of traffic fine revenue collection and the imposition of an ominous administrative burden on those accused of traffic violations.
One of the main changes included in the amendment is the scrapping of a provision that fines have to be served personally or by registered mail. The amendment instead allows for “electronic service”, which entitles the RTIA to issue fines by email and regard them as served on the tenth day after posting. It is up to the infringer to produce evidence in the form of an affidavit to prove they were not served.
THE PLAYERS AND THEIR POSITIONS
APPLICATION 1: Outa’s application for confirmation
The high court accepted the core submissions by Outa. The judgment found that both Aarto acts were unconstitutional and invalid because, by setting up a national system to enforce traffic and parking laws, Aarto usurps the exclusive executive authority of local government over local roads and the authority of provincial government over provincial roads.
Outa’s main argument is that Aarto is more about making money and less about road safety and that through the introduction of a national system of traffic regulation, the government is acting contrary to the constitution. Outa claims these competencies should vest with provincial and municipal authorities. By taking them away, struggling municipalities will be deprived of much-needed revenue as Aarto will trump any form of local ordinances and bylaws. Outa argues that municipalities will therefore not be able to collect monies for themselves and conflict between local ordinances, bylaws and the provisions of the Aarto amendment aim to prosecute the same (or similar) traffic offences.
Outa believes Aarto infringes on the constitutional rights of drivers and owners of vehicles in that fines that are posted or electronically emailed are deemed delivered. It further argues that 50% of the fines and the admin fees go to the RTIA, meaning local municipalities automatically lose half the income generated from fines.
Aarto also does not allow a road user to challenge an infringement in court. They are instead burdened with a complicated administrative process before court is considered as an option.
Outa argues that the national tribunal to hear motorists’ appeals will consist of just nine people, and therefore a backlog in dealing with infringements is likely.
“We foresee an increase in bribery and corruption to avoid demerit points. The Aarto pilot project which ran in Johannesburg and Tshwane for 10 years failed to improve road safety or decrease the number of road fatalities,” said Outa’s advocate, Stefanie Fick.
Outa has asked for the matter to be decided as soon as possible, as the government intends rolling out Aarto. If the invalidity is confirmed, Outa asks for the acts to be set aside with immediate effect, to avoid the state incurring costs in rolling out the system. .
APPLICATION TWO: Government’s appeal
The minister of transport and the RTIA say the court erred in granting the declaration of constitutional invalidity.
They argue that administering traffic contraventions in terms of Aarto rather than the Criminal Procedure Act is more efficient as it establishes a procedure for the adjudication of infringements, without taking over the enforcement powers of provinces and municipalities.
They argue that road traffic regulation is a national competence, and so the Aarto process should precede the powers of municipal authorities that issue their own infringement notices. The court should identify only provisions in Aarto that should not be included instead of scrapping the entire act and amendment.
The minister argues that Aarto aims to alleviate the burden on courts, to penalise those guilty of infringements by imposing a demerit system that will see repeat offenders eventually stripped of their licences, with points earned back by those who go long periods without infringements.
The RTIA argues that the national government should have the competence to legislate on matters relating to provincial and municipal roads; that the court erred in finding that Aarto creates a single national system of road traffic regulation seeking to regulate every aspect of road traffic and that the court was wrong to find that traffic law enforcement had historically been conferred on municipalities.
The RTIA argued that the court had erred in finding that the government was not responsible for matters dealing with provincial and municipal roads, traffic and parking.
APPLICATION 3: The Road Traffic Management Corporation intervenes
The RTMC is a state-owned enterprise whose shareholders are the minister of transport (the first respondent in the matter) and the provincial MECs for transport, who are involved in RTMC governance.
The RTMC argues that Aarto is at the core of its statutory mandate as an issuing authority and that it was established as a partnership between national, provincial and local government on traffic issues. It argues that the substance and goals of Aarto are primarily concerned with road traffic regulation and should therefore fall under national legislation.
APPLICATION 4: The City of Cape Town amicus curiae application
The City of Cape Town is in support of Outa’s application to have Aarto declared invalid. It argues that Aarto intrudes on the executive competence of local government.
The city says it is an issuing authority in terms of the Aarto Act but that the system should be enforced and adjudicated at local government level and not at national level because local government's financial and fiscal powers will be adversely affected by Aarto. This is because Aarto both restricts its revenue from traffic fines and imposes additional operational expenditure on it.
“Statistics show that the compliance rates in the two metros where Aarto was implemented 10 years ago are below 5%. This is mainly because of the RTIA's inability to administer the scheme. If the same compliance rate is achieved throughout the country, municipalities and metro councils will be left with a huge shortage in their budgets,” the city argued in its application.
The city further argues that Aarto not only removes traffic law-enforcement powers from municipalities, it further compounds the issue by vesting the powers of appeal in an appeals tribunal “which is another organ of state”.
THE PARTY RESPONSES AHEAD OF THE HEARING
“We are not commenting on the matter,” said the RTMC.
RTIA spokesperson Monde Mkalipi said the agency viewed road safety as a paramount national concern, as the “horrifying” road accident death rate at 25 deaths per 100,000 people saw South Africa ranked among the highest in the world, with accidents costing R188.3bn annually — equal to 6.4% of GDP.
“We believe that road safety awareness programmes can change the behaviour of road users,” he said, adding that Aarto was designed to enforce compliance with traffic regulations and at the same time improve road safety through uniform implementation across the country.
Speaking on behalf of Outa, Fick said they were looking forward to oral arguments, believe they have a solid and strong case and are confident that they will successfully show that traffic violations cannot effectively be addressed through an administrative process, that Aarto is unconstitutional and unworkable.
“We are not against road safety and we are not saying that motorists should be allowed to do what they want — the serious cases will still go to court. But you cannot have a situation where people can just be told in an email they've done something wrong. It's assumed they have a computer and received the notice, and then they are not given the chance to explain or argue,” Fick said, adding that she expected judgment to be reserved and that a decision was unlikely before next year.
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Aarto heads to ConCourt for final decision on its constitutionality
Image: Thapelo Morebudi
The highest court in the land was this week asked to decide the future of Aarto — the much-anticipated legislation laying down the penalties for traffic violations, a demerit system aimed at stripping repeat offenders of their licences and legalising fines by email.
The Constitutional Court will decide on a Pretoria high court ruling on a case brought against the government by civil activist group Organisation Undoing Tax Abuse (Outa). The high court found Aarto to be unconstitutional and invalid and ordered that it be scrapped in its entirety.
Now, on Tuesday, three parties argue for the high court decision to be declared an error, while Outa and the City of Cape Town will ask for Aarto to be thrown out. Whichever way the court decides, it will affect every motorist and pedestrian and determine how traffic violations throughout the country are handled.
What is Aarto?
The Administrative Adjudication of Road Traffic Offences Act of 1998 (the Aarto Act) sets up a single national system of road traffic regulation, to hold motorists to account for traffic violations.
Aarto differs entirely from the Criminal Procedure Act which has been and still is used to prosecute road traffic offences everywhere else in South Africa. Traffic fines issued under Aarto offer the infringer a 50% discount if they pay within 32 days and even those protesting innocence are not entitled to a trial before court. Fines issued under the Criminal Procedures Act do cater for a summons.
Those who fail to pay Aarto fines are then processed into an automated adjudication procedure. This involves the issuing of a “courtesy letter” demanding the full undiscounted amount plus R60 for the issuing of the letter.
If this is again ignored, an enforcement order is issued in which demerit points are linked to the driver’s licence, the infringer is barred from renewing their licence, professional driver's permit or licence disc and ordered to pay 100% of the penalty plus fees for the courtesy letter and enforcement order. If they disagree, they may apply to the Road Traffic infringement Agency (RTIA) appeals tribunal to have the enforcement revoked.
Aarto made it into the news in 2019 when the act was amended. Big announcements were made by the RTIA and the transport ministry, saying that the primary goal of the Aarto Act was to improve road safety. However, critics pointed out that in reality there was no improvement in road carnage and Aarto’s main function appeared to be the expedition of traffic fine revenue collection and the imposition of an ominous administrative burden on those accused of traffic violations.
One of the main changes included in the amendment is the scrapping of a provision that fines have to be served personally or by registered mail. The amendment instead allows for “electronic service”, which entitles the RTIA to issue fines by email and regard them as served on the tenth day after posting. It is up to the infringer to produce evidence in the form of an affidavit to prove they were not served.
THE PLAYERS AND THEIR POSITIONS
APPLICATION 1: Outa’s application for confirmation
The high court accepted the core submissions by Outa. The judgment found that both Aarto acts were unconstitutional and invalid because, by setting up a national system to enforce traffic and parking laws, Aarto usurps the exclusive executive authority of local government over local roads and the authority of provincial government over provincial roads.
Outa’s main argument is that Aarto is more about making money and less about road safety and that through the introduction of a national system of traffic regulation, the government is acting contrary to the constitution. Outa claims these competencies should vest with provincial and municipal authorities. By taking them away, struggling municipalities will be deprived of much-needed revenue as Aarto will trump any form of local ordinances and bylaws. Outa argues that municipalities will therefore not be able to collect monies for themselves and conflict between local ordinances, bylaws and the provisions of the Aarto amendment aim to prosecute the same (or similar) traffic offences.
Outa believes Aarto infringes on the constitutional rights of drivers and owners of vehicles in that fines that are posted or electronically emailed are deemed delivered. It further argues that 50% of the fines and the admin fees go to the RTIA, meaning local municipalities automatically lose half the income generated from fines.
Aarto also does not allow a road user to challenge an infringement in court. They are instead burdened with a complicated administrative process before court is considered as an option.
Outa argues that the national tribunal to hear motorists’ appeals will consist of just nine people, and therefore a backlog in dealing with infringements is likely.
“We foresee an increase in bribery and corruption to avoid demerit points. The Aarto pilot project which ran in Johannesburg and Tshwane for 10 years failed to improve road safety or decrease the number of road fatalities,” said Outa’s advocate, Stefanie Fick.
Outa has asked for the matter to be decided as soon as possible, as the government intends rolling out Aarto. If the invalidity is confirmed, Outa asks for the acts to be set aside with immediate effect, to avoid the state incurring costs in rolling out the system. .
APPLICATION TWO: Government’s appeal
The minister of transport and the RTIA say the court erred in granting the declaration of constitutional invalidity.
They argue that administering traffic contraventions in terms of Aarto rather than the Criminal Procedure Act is more efficient as it establishes a procedure for the adjudication of infringements, without taking over the enforcement powers of provinces and municipalities.
They argue that road traffic regulation is a national competence, and so the Aarto process should precede the powers of municipal authorities that issue their own infringement notices. The court should identify only provisions in Aarto that should not be included instead of scrapping the entire act and amendment.
The minister argues that Aarto aims to alleviate the burden on courts, to penalise those guilty of infringements by imposing a demerit system that will see repeat offenders eventually stripped of their licences, with points earned back by those who go long periods without infringements.
The RTIA argues that the national government should have the competence to legislate on matters relating to provincial and municipal roads; that the court erred in finding that Aarto creates a single national system of road traffic regulation seeking to regulate every aspect of road traffic and that the court was wrong to find that traffic law enforcement had historically been conferred on municipalities.
The RTIA argued that the court had erred in finding that the government was not responsible for matters dealing with provincial and municipal roads, traffic and parking.
APPLICATION 3: The Road Traffic Management Corporation intervenes
The RTMC is a state-owned enterprise whose shareholders are the minister of transport (the first respondent in the matter) and the provincial MECs for transport, who are involved in RTMC governance.
The RTMC argues that Aarto is at the core of its statutory mandate as an issuing authority and that it was established as a partnership between national, provincial and local government on traffic issues. It argues that the substance and goals of Aarto are primarily concerned with road traffic regulation and should therefore fall under national legislation.
APPLICATION 4: The City of Cape Town amicus curiae application
The City of Cape Town is in support of Outa’s application to have Aarto declared invalid. It argues that Aarto intrudes on the executive competence of local government.
The city says it is an issuing authority in terms of the Aarto Act but that the system should be enforced and adjudicated at local government level and not at national level because local government's financial and fiscal powers will be adversely affected by Aarto. This is because Aarto both restricts its revenue from traffic fines and imposes additional operational expenditure on it.
“Statistics show that the compliance rates in the two metros where Aarto was implemented 10 years ago are below 5%. This is mainly because of the RTIA's inability to administer the scheme. If the same compliance rate is achieved throughout the country, municipalities and metro councils will be left with a huge shortage in their budgets,” the city argued in its application.
The city further argues that Aarto not only removes traffic law-enforcement powers from municipalities, it further compounds the issue by vesting the powers of appeal in an appeals tribunal “which is another organ of state”.
THE PARTY RESPONSES AHEAD OF THE HEARING
“We are not commenting on the matter,” said the RTMC.
RTIA spokesperson Monde Mkalipi said the agency viewed road safety as a paramount national concern, as the “horrifying” road accident death rate at 25 deaths per 100,000 people saw South Africa ranked among the highest in the world, with accidents costing R188.3bn annually — equal to 6.4% of GDP.
“We believe that road safety awareness programmes can change the behaviour of road users,” he said, adding that Aarto was designed to enforce compliance with traffic regulations and at the same time improve road safety through uniform implementation across the country.
Speaking on behalf of Outa, Fick said they were looking forward to oral arguments, believe they have a solid and strong case and are confident that they will successfully show that traffic violations cannot effectively be addressed through an administrative process, that Aarto is unconstitutional and unworkable.
“We are not against road safety and we are not saying that motorists should be allowed to do what they want — the serious cases will still go to court. But you cannot have a situation where people can just be told in an email they've done something wrong. It's assumed they have a computer and received the notice, and then they are not given the chance to explain or argue,” Fick said, adding that she expected judgment to be reserved and that a decision was unlikely before next year.
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