Strict new driving rules for South Africa on shaky ground

 ·8 May 2023

The Road Traffic Infringement Agency (RTIA) is pushing ahead with the rollout of the Administrative Adjudication of Road Traffic Offences (Aarto) Act “in its current form” as the agency waits for the Constitutional Court to rule on the legality of the system.

The RTIA flagged the ConCourt’s pending ruling as the biggest risk for its rollout plans, which envisions the system being fully implemented over the MTEF period (over the next three financial years).

The case of Aarto’s constitutionality was taken to South Africa’s apex court in November 2022, where the judgment was reserved. The Constitutional Court is yet to rule on the matter.

Despite the lack of finality on the Aarto’s constitutionality, however, the Aarto rollout is still very much on the RTIA’s strategic plan for the year as presented in its latest Annual Performance Plan.

This includes running 270 awareness campaigns on the new laws this financial year and presenting a new revised adjudications framework. The three-year plan is to assess the readiness for the system in 2023/24, implement the system in 2024/25 and then assess the system’s implementation in 2025/26.

The group is looking at a budget of around R480 million for all of its strategic goals for the year – a sizeable portion of which (R160 million) relates to the Aarto rollout.

On top of the huge risk posed by the Constitutional Court potentially confirming that the act is unlawful and invalid, the RTIA also flagged other risks inherent to the system – including municipalities failing to implement the system correctly or corruption seeping into enforcement.

What Aarto means for drivers

The key change to South Africa’s road laws through the Aarto would be the introduction of a demerit system whereby a person, operator or company (juristic person) pays the penalty and incur points when a traffic infringement is committed.

Drivers will start with zero points and will “earn” demerit points as and when applicable through the AARTO process, where demerit points are allocated.

Currently the threshold is a maximum of 12 points, with the proposed amendments recommending 15 points. From point 13, the various sanctions of suspension or cancellation of a driving licence will occur, as defined in the AARTO legislation.

The laws also make provision for new offences to be added, even those relating to admin such as failing to update addresses.

New driving rules for South Africa in 2021 – what you need to know

The big problem

Sections of the Aarto Act and Aarto Amendment Act were declared unconstitutional by the High Court in January 2022 on the grounds that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution, preventing local and provincial governments from regulating their own affairs.

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.

Opponents to the system have successfully argued in the country’s courts that they laws remove provincial control of traffic infringements and make them a national competency. The High Court found that the laws usurp the executive authority of local and provincial governments on traffic matters on municipal and provincial roads.

Municipalities have also flagged that removing provincial control will impact revenue and thus services delivery.

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.

Update: The article has been updated to clarify how the demerit system works.


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