Showdown over South Africa’s strict new driving rules
The constitutionality of South Africa’s strict new driving laws is now in the hands of the Constitutional Court.
The country’s apex court heard arguments in a showdown between civil action group Outa and the Minister of Transport and others on Tuesday (15 November), with the former seeking confirmation of a High Court order in January.
The January 2022 order declared parts of the Aarto Act unconstitutional on the grounds that the legislation unlawfully intrudes on the exclusive executive and legislative rights of local and provincial governments, preventing them from regulating their own affairs.
Judgment was reserved, which means the court will give judgment at a later date.
The Aarto laws move road traffic infringements out of the ambit of the Criminal Procedure Act – and thus the courts – and into an administrative process. The laws also aim to introduce the controversial demerit system to the country and implement it nationwide.
Most of the Aarto laws already apply in the City of Johannesburg and the City of Tshwane – excluding the demerit system linked to driving licences – but not in the rest of South Africa. The Aarto Amendment Act was intended to roll the law out across the country and add the demerit system.
New driving rules for South Africa in 2021 – what you need to know
The January court ruling declaring parts of the legislation unconstitutional follows a case being brought by Outa, which took exception to the new laws removing provincial control of traffic infringements and making them a national competency.
Outa argued that the laws usurp the executive authority of local and provincial governments on traffic matters on municipal and provincial roads.
This position was supported by the Western Cape government, which argued further that applying the laws would also remove a revenue stream from the provinces.
The minister of transport, the Road Traffic Authority (RTA) and the Road Traffic Management Corporation (RTMC) opposed the ruling, arguing that all matters dealing with Aarto and the Amendment Act fall within ‘road traffic regulation’, which they argued falls within the concurrent legislative competence of both Parliament and provincial governments.
The minister et al said that Aarto regulates and provides for road traffic regulation and that there is no provision in the Constitution that confers exclusive legislative competence to any sphere of government in respect of road traffic regulation.
The minister of transport, the RTIA and the RTMC all want the High Court order to be overturned and the Aarto laws to remain in place.
According to Outa, if the Constitutional Court rules in its favour – ie, the laws are declared unconstitutional – it wants the effect to be immediate to prevent the national government from wasting money on rolling out an illegal system.
In this eventuality, the state groups want the declaration to be suspended for 18 to 24 months to give the government time to rectify the laws.
If the Constitutional Court rules against Outa – ie, the High Court ruling is overturned – the group said it will seek an order declaring certain aspects of the laws unconstitutional, specifically on the grounds that these fail to provide for adequate service of notices on infringers.
Outa said it is confident that the Constitutional Court would rule in its favour.
“We are still confident that the judges will consider our argument favourably. Aarto needs to be scrapped and go back to the legislators,” said Outa Executive Director, Advocate Stefanie Fick.
Read: Strict new driving laws for South Africa face ultimate challenge this month
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