South Africa’s new driving rules are being challenged – what you should know
Civil society group Outa is challenging the Administrative Adjudication of Road Traffic Offences (Aarto) Act and the Aarto Amendment Act, arguing that the regulations are unconstitutional.
The Aarto system will penalise drivers and fleet operators guilty of traffic offences or infringements by imposing demerit points that could lead to the suspension or cancellation of licences, professional driving permits or operator cards.
The legal case, which is set to be heard in Pretoria High Court from Monday (18 October), focuses specifically on the introduction of a new demerit system, how fines will be issued, and whether the Aarto amendments will improve road safety.
Outa argues that the legislation unlawfully intrudes upon the exclusive executive and legislative competence of the local and provincial governments envisaged in the Constitution.
Outa’s argument
Outa is arguing that the Aarto Act and the Amendment Act are unconstitutional for two reasons.
- Firstly, because these Acts usurp the exclusive legislative authority of the provincial legislatures as, in terms of the Constitution, provincial and municipal traffic regulation falls under the legislative competence of the provinces.
- Secondly, the Acts usurp the executive authority of local government, granted in terms of the Constitution, to enforce traffic and parking laws at a municipal level.
“These Acts create a system whereby traffic laws are, by default, enforced through a national system of administrative tribunals, administrative fines and demerit points,” said advocate Matthew Chaskalson, senior counsel, in the heads of argument for Outa.
“The national government did not have the power to pass national legislation regulating all road traffic. By so doing, it unconstitutionally invaded the exclusive legislative competence of the provinces and the exclusive executive competence of the municipalities.
“The participation or approval of the provinces cannot cure this fundamental defect.”
Alternatively, Outa argues that the service provisions of section 17 of the Amendment Act are ‘manifestly inadequate and are unconstitutional’ as it removes the requirement that service of documents under the Aarto Act must be personal or by registered mail.
“It allows service by email, SMS or voice mail. Given the serious consequences that may flow from an infringement, such service is inadequate,” said Chaskalson.
“Proper service, at all stages of the adjudication process, is critical to ensuring that an infringer’s constitutional rights are protected.”
An infringer who has not received notice of their infringement and who would have contested it or even paid the penalty may end up barred from obtaining a driver’s licence or banned from driving until they have overturned the enforcement order.
No personal delivery of fines
The Road Traffic Infringement Agency (RTIA) is currently rolling out phase 2 of the Aarto ahead of its full implementation on 1 July 2022.
Phase 2 of the project, which will run between October and December 2021, will see the Aarto come online in 67 local and metropolitan municipal areas, the agency said.
The new phase will also see the official introduction of the electronic service of documents such as traffic infringements, promising a shake-up of the decades-old traffic fine system in South Africa.
Speaking to BusinessTech on 5 October, RTIA spokesperson Monde Mkalipi said that the new electronic service would effectively give motorists an option to receive their traffic fines in three different ways:
- Through the standard postal method;
- Via SMS or other mobile messaging services; and
- Online, including an option to receive traffic fines through email.
Mkalipi said that motorists would choose which option they prefer through the Aarto onboarding process.
He added that the Electronic Communications Act would be followed for fines sent electronically, with traffic authorities tracking whether a fine has been sent through email and SMS and not whether it has been opened and read by a motorist.
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